Homosexuality-“NO MORE A DEVIANT”
Author: Mehak Kumari Vikrant Bhambi
Symbiosis Law College, Pune
Homosexuality [Greek word homo, meaning “same”] can be characterized generally sexual attraction (now widely called “sexual orientation”) to one’s own gender. Itis generally defined as anal or oral copulation with another person or animal. Homosexuality (rarely haemophilia) is a sexual orientation or orientation characterized by romantic or sexual desire for, or sexual attraction towards, members of the same sex. The term usually implies an exclusive or predominant sexual orientation towards persons of the same sex and is distinguished from bisexuality as well as heterosexuality. In addition to referring to sexual orientation, the term homosexuality is also used for sexual behavior between people of the same-sex. In similar terms, homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender.[i] As a sexual orientation, homosexuality is “an enduring pattern of emotional, romantic, and/or sexual attractions” to people of the same sex. It “also refers to a person’s sense of identity-based on those attractions, related behaviors, and membership in a community of others who share those attractions.” [ii]
Homosexuality refers to attraction or sexual behavior between people of the same sex, or to sexual orientation. As an orientation, Homosexuality refers to “an enduring pattern of or disposition to experience sexual, affection, or romantic attractions primarily to “people of the same sex; “it also refers to an individuals sense of personal and social identity based on those attractions, behaviors expressing them and membership in a community of those who share them.”[iii]
Homosexuals may be male (now widely called gay) or female (now widely called lesbian). In women, romantic or sexual desire for other women is also called lesbianism (lesbian, noun, and adjective). The term gay is used to refer to homosexuals persons of either gender, although it is mostly used to refer to males (hence the expression gay and lesbian or gay men and lesbians). Persons with the sexual orientation of Homosexuality are sometimes called homosexual (noun and adjective). Exclusive homosexuality, like exclusive heterosexuality, is uniquely human. Homosexual orientation takes many and varied forms. In some persons, it is limited to fantasy. Some lead asexual lives. Some attempt to suppress their inclinations by marrying. Some persons (widely known as bisexual) are able to combine homosexual and heterosexual activity. Many homosexuals lead double lives, anxiously hiding from their friends and family a secret world of homosexual liaisons. In recent years growing numbers of homosexuals have accepted their orientation as natural and inherent in their personalities. Some take pride in it and form organizations to promote gay liberation. Where homosexual orientation is allowed, social expression, it tends to increase in frequency (like other stigmatized action – e.g., divorce). Like heterosexual behavior, homosexual behavior ranges from anonymous sex, promiscuity, and prostitution to romantic affairs and lifelong faithful relationships. One of the characteristics of sex is, that having tried it once, people want more – it becomes addictive. People also develop emotional dependence on their partners. This is also true of Homosexual sex. Homosexuality is among the most ancient manifestations of human sexuality and different societies have reacted to it in various ways, from permissiveness to condemnation. Some societies believed homosexuals possessed magic powers, and conferred SHAMAN status upon them. The ancient Greeks treated homosexuality as part of the normal range of sexual behavior. In some societies homosexuality has been more tolerated for certain groups (e.g., artists, actors, sailors) or among the noble “favorites” in certain royal courts.[iv]
HOMOSEXUALITY IN INDIA
In different periods and in different languages of India, a number of terms were used for Homosexual behavior and for those who are engaged in that behavior. Religious as well as nonreligious, written by saints and poets, the writings from Vedic and Ancient period who that the intense and passionate relationship or attachments between men and between women have always existed in India. Sometimes, and in some places, this kind of relationship was honored and praised as true and even worthy of being intimate. In other periods and in other places, Homosexuality was considered to be a very natural, normal, and inevitable emotional aspect of human sexual life. For this reason, a Homosexual relationship was accepted and nobody paid much attention to them. For example, Homosexuality was not a condemned mode of sexual gratification when the temple sculptures of Khajuraho and Konark were depicting it in stone for all posterity to see. Finally, there were the periods and places where Homosexuality was punished and humiliated and was treated unnatural, abnormal, unethical and immoral[v]in ancient India, it was considered normal for women to have an intimate relationship with other women. Close physical contact between women has always been considered normal and healthy. Sisters or women friends would commonly sheer the same bed. The word Sakhi or Girlfriend is related to Shakti, the vital female home principle, the new energy of Tantra. The Ramayana, an important Hindu Epic, contains an account of ménage in which Sapphic sex is poetically described. There were innumerable women lying on rugs, who had fallen asleep after spending the night in sensual play. The kama Sutra described how women can use their mouths on each other’s Yonis (Vagina) and describes also many ways of satisfying sexual desires with bulbs, roots, or fruits, which have the same shape as Lingam.[vi]
ANTI-HOMOSEXUAL ATTITUDES IN INDIA
In so far as Homosexuality has never been totally accepted in India, Anti-Homosexual attitudes in various forms and to various degrees have existed and been expressed throughout the history of India. The forms of anti-homosexual attitudes ranged from ignorance to insults to physical attacks and to punishment. According to one Report “At most times and places in pre nineteenth-century India, love between women and between men, even when disapproved of, was not actually ANTI-
HOMOSEXUAL ATTITUDES IN INDIA
In so far as Homosexuality has never been totally accepted in India, Anti-Homosexual attitudes in various forms and to various degrees have existed and been expressed throughout the history of India.[vii] The forms of anti-homosexual attitudes ranged from ignorance to insults to physical attacks and to punishment. According to one Report “At most times and places in pre-nineteenth-century India, love between women and between men, even when disapproved of, was not actually persecuted. As far as we know, no one has ever been executed for Homosexuality in India. Nevertheless, the range and severity of Anti-Homosexual responses had differed in different periods and places, depending on the individual’s age caste and gender. Until recent times, “The rights of Gay people is a subject little mentioned, rarely discussed in this country. But the last decade of the twentieth century has witnessed the establishment of a number of Gay and/or Lesbian Organisations. Gay and Lesbian parades took place in different parts of the country. They asserted that homosexuality is not an abnormality but it is a way of life. They demanded that they should be treated alike Heterosexuals and be given equal dignity and honour. In our country Homosexuality is considered as an offence, to be some kind of wickedness and therefore frowned upon.
Section 377 of the Indian Penal Code which was originally enacted by the British in 1860, reads as follows:
“Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature, with any man, woman or animal, shall be punishable with imprisonment for a term which may extend to ten years and shall be liable to fine”[viii]
Apart from Section 377, there is no other provision in IPC which deals with Homosexuality or Homosexual behaviour between men or women. But in April 1994, a Delhi based Non- Government Organization (NGO), NAZ, Filed a petition in Delhi High Court to challenge the legality of Section 377 of IPC as it violates rights of the Homosexuals guaranteed by our Constitution. Since as per IPC Homosexuality is treated as an act that entails criminal liability in India, how can a foreign homosexual couple be legally allowed to get a surrogate child? It is often alleged that Section 377 of IPC violates the fundamental rights of homosexuals in India. Despite the existence of literature from Hindu, Buddhist, Muslim as well as modern fiction to testify the presence of same-sex affinity in various forms, Homosexuality is still considered a taboo by both the civil society and the government in India.
THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL, 2008
The Indian Council of Medical Research (ICMR) has enacted the Assisted Reproductive Technology (Regulation) Bill, 2008 (“Bill”), which, in all likelihood, will become a law in the Parliament. However, there are certain confusing definitions in the bill that need further explanations and clarifications. Section 32(1) of the Bill, which is the enabling provision states: “That subject to the provisions of this Act and the rules and regulations made thereunder, Assisted Reproductive Technology (“ART”) shall be available to all persons including single persons, married couples and unmarried couples.”
Therefore, it becomes pertinent to understand that how a couple is defined here. Under Section 2(e) of the Bill, a couple means: “The persons living together and having a sexual relationship that is legal in the country/countries of which they are citizens or they are living in”. This definition is inclusive in nature and covers all kinds of couples, whether they are homosexuals or not. Furthermore, the definition does not prevent the citizens of a country (where homosexual marriage is legal) from having a surrogate child. So, if Section 377 of IPC is amended so as to be in consonance with the scheme of the Bill (as and when it is passed by both the houses to give it a legal effect), there will be no impediment in including same-sex couples within the definition of the couple as defined under section 2(e) of the Bill. The effect of the definition appears to do away with the legal limitation imposed by Section 377 of IPC and is not just a mere coincidence of legal drafting. As we ponder upon some other definitions in the Bill, an “unmarried couple” is defined under section 2(w) to mean: “A man and a woman, both of marriageable age, living together with mutual consent but without getting married.” So when these two definitions are read simultaneously, it clearly delineates that for an unmarried couple to get a surrogate child, they have to be heterosexual; but on the other hand, no such condition is applicable to married couples i.e. they might be homosexual or heterosexual. This leaves us in sheer confusion as Section 32(1) is not restricted, but extended to include ‘single persons’, married couples and unmarried couples as well. There is perhaps a window left open for a foreign married homosexual couple who, according to the two definitions under the Bill, are a ‘couple’ having a valid married status under their jurisdiction. The non-exhaustive language used herein should allow the courts to fill in the gap.[ix]
THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL– DISCRIMINATORY IN NATURE:
Since a Homosexual relationship or marriage is not legal in India, this Bill by ICMR seems discriminatory in nature towards Indian Homosexuals as homosexuality is legally prohibited in the country. On the other hand, homosexuals from the countries (where homosexual marriages are legal) can freely come to India and get a surrogate child. Moreover, an Indian homosexual couple cannot have a surrogate child; an Indian homosexual person can do so only by invoking his status a ‘single person’ under the Bill, and not as a homosexual. Marital status of a homosexual individual, therefore, does not matter either for having a surrogate child. In addition, Section 34 (10) of the Bill states that “The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of the genetic parents/parent of the baby.” This implies that the child belongs to them (him) who contributes to the genetic makeup of the child (excludes anonymous donors). Only one of the two partners in a homosexual couple can make up such a contribution; under section 33(3) of the Bill states: “A donor shall relinquish all parental rights over the child which may be conceived from his or her gamete.” For this purpose and therefore, the child will bear only the name of the contributing partner of the homosexual couple. The question now is: ‘is marital status going to be a restrictive factor preventing Indian unmarried homosexual couples from having a surrogate child?’ In light of the above stated, the answer to this question would certainly be no, but still, there is a discriminating factor against Indian homosexual couples and in favour of foreign homosexual couples (who can legally get a surrogate child as per ICMR). This kind of problem can be conveniently solved by passing the bill only when the status of the Indian homosexual couples is brought at par with the foreign homosexual couples; wither legalize homosexual relationships/marriages in India or else, put such restrictions on a foreign homosexual married couple as are faced by Indian homosexuals (where the issue of getting a surrogate child is concerned).
GAY-LESBIAN RIGHTS AND THE INDIAN CONSTITUTION
Right which are considered essential or fundamental for the well-being of a person are called Fundamental Rights. The Fundamental Rights in India enshrined in the Part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizen of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to direction of the judiciary. The Fundamental Rights aredefined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or sex. They are enforceable by the courts, subject to certain restrictions. Rights literally mean those freedom which are essential for personal good as well as the good of the community. The rights guaranteed under the Constitution of India are fundamental as they have been incorporated into the Fundamental Law of the Land and are enforceable in a court of law. However, this does not mean that they are absolute or that they are immune from Constitutional amendment. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also protect rights of minorities. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background and sexuality. The Fundamental Rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. These Fundamental Rights help not only in protection but also in the prevention of gross violations of human rights. Fundamental Rights primarily protect individuals from any arbitrary state actions, but some rights are also enforceable against individuals. In 2001, the first complaint in the country of a Human Rights violation against Homosexuals had been filed with the National Human Rights Commission. ShaleenRakesh, a Gay Activist has filed a complaint on the ground that the Indian Psychiatric Society has not formally recognized Homosexuality as normal behavior. There has been instance when Psychiatrists have put Gay men though unimaginable physical and psychological torture to try and convert them to Heterosexuality. This is often done purely with the aim of making money. In response to the complaint, “Dr. Sandeep Vohra, Senior Consulting Psychiatrist in Apollo Hospital and President of Delhi Psychiatric Society said, “Homosexuality is not a disease, and we will continue to treat it that way.”
[i] Sexual orientation, homosexuality and bisexuality, American Psychological Association. Archived from the original on 8August 2013, Retrieved April 9, 2020.
[ii] Case No. SI 47999 in Supreme Court of the State of California, In Re Marriage Cases Judicial Council Coordination Proceeding No. 4365- APA California Amicus Brief- As Filed” P.30. Retrieved s10 April, 2020.
[iii]http://www.altlawforum.com, visited on 10 April, 2020.
[iv]VitorioLingiardi, Jack Drescher, “The Mental Health Profession And Homosexuality : International
PersP.V. Pradhan, K.S. Ayyar and V.N. Bagadia, “Male Homosexuality : A Psychiatric Study of Thirteen Cases”,
Medknow Publications, U.S. 1982, Pg 182
[vi]Nik Douglas, Penny Slinger, “Sexual Secrets : The Alchemy of Ecsrasy”, Destiny Books, N.Y, 1979, pg 326-
327pectives”, Harworth Press, New York, 2003, Pg 147s
[vii] Ruth, Vinita and SaleemLidwai, “Same sex Love In India : Readings from Literature and History, “Palgrave
Mchmillan Publications, New York,2000, P xviii
[viii] Ruth, Vinita and SaleemLidwai, “Same sex Love In India : Readings from Literature and History, “Palgrave
Mchmillan Publications, New York,2000, P xviii
[ix] “Rights of Foreign Homosexual to have a Surrogate Child in India:, http://www.blogged.The–protagonist.net,
visited on 8-04-20