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“A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can’t be allowed to cross boundaries of law but confines of law cannot trample or curtails the inherent right embedded in an individual under Article 21 of Constitution.”
What is homosexuality?
Homosexuality can be described as both attraction and sexual behaviour between people of the same gender or to sexual preference. Homosexuals are normal humans who are attracted to the people of the same gender. The term usually implies an exclusive or predominant sexual orientation towards people of the same sex and is distinguished from bisexually or heterosexuality. Homosexuals can be persons of both the sex i.e. Gays and lesbians. Human sexuality is very complex. The acknowledgement of differentiation between desire, conduct, identity recognizes the multidimensional idea of sexuality.
Homosexuality is a gender identity just like Heterosexuality and isn’t unnatural. Homosexual behaviour has been approved of, tolerated, punished and banned. Homosexuality was prevalent in ancient Rome and Greece. On the other hand, Judeo- Christian as well as Muslim cultures have generally perceived homosexual behaviour as sinful.
Homosexuality in India
Homosexuality is considered as religious sin or against religion and culture but it is a quite noticeable point that homosexuality has an ancient history in India. In ancient and medieval Indian culture, gender was a fluid concept for yakshas and human alike. The “Markandeya Purana” carries a story of Avishikta, the son of a king who refused to marry because he believed he was a woman. The Mahabharata broadly recounts to an account of Amba who was abducted by Bhishma yet rejected by him. Praying to avenge the insult, Amba is born as Shikhandini and then prayed for further transformation as man, so that she can fight with Bhishma and becomes the cause of his death on the battlefield.
Indian monuments like Khajuraho are popular for its erotic arts and stone carvers; this additionally includes sculptors depicting homosexual activities. All through Hindu and Vedic writings there are numerous portrayals of saints, demigods and even supreme lords rising above gender norms and showing various blends of sex and gender. There are numerous illustrations in old Indian epic poetry of same-sex portrayals and associations.
“In ancient India, Homosexuality was never considered as a crime, in reality, alternative sexuality shaped an integral aspect of society. in addition to male and female, there are more than 20 kinds of sexual orientations, for example, transwomen, transmen, gender-ambiguous, pangender, trigender and so on and in ancient India, it was known as Tritiya Prakriti. This shows that not only all types of sexual orientation existed but also that people were so tolerant and broad-minded that paintings depicting the same were being freely created and displayed.
Is homosexuality an import from the west?
The answer is no, homosexuality is not an import from the west but its criminalization is. India’s religious and cultural heritage, on the other hand, has been accommodating to multiple genders and sexual identities than western society. It was the British Govt. who labelled it as “unnatural” and a “crime”. India’s fluid gender and sexual norms did not fit into Britain’s Victorian conceptions of appropriate sexual behaviour. As the British Empire grew more powerful in the Indian Subcontinent in the mid-nineteenth century, so did their thoughts regarding culture, society and law. British authorities viewed local views on sexuality as unpleasant, thus they implemented Western, Judeo-Christian sexual standards on colonial subjects. Before the British, homosexuality was not illegal in India.
The very evidence of it is Sec 377 of Indian Penal Code which was drafted by British officials in 1860. This could punish those who committed sodomy or other homosexual acts with life imprisonment. India was not the only colony of British government where previously acceptable sexual behaviours and identities were condemned. A similar statute was imposed in 42 former colonies.
Sec 377 met with heavy criticism in India. The constitutional validity of Sec 377 was in question, as it violates Article 14, 15 and 21 of the Constitution which ensures equality, protection against discrimination and right to life and liberty (which also includes Right to privacy) to all the citizens of the country. As a consequence, Sec 377 was decriminalized by Hon’ble Supreme Court. However, the judgment was limited to its scope as it only legalized consensual sexual intercourse between homosexuals.
The Centre recently opposed a plea filed before Delhi High Court, which seeks to perceive privilege of rights of a same-sex couple to get married under Hindu Marriage Act, 1956. This is a very good example that India might have legalized gay sex but the path towards acceptance of the LGBTQ+ community is still complicated. Unlike ancient India, homosexual people are not treated equally and properly and their basic human rights are violated frequently. Lesbian, Gay, Bisexuals, Transgender and Intersex (LGBTI) people in India face legal and social difficulties, unlike non-LGBTI people. Sexual activity between people of the same gender was illegal under Section 377 of IPC until recently and same-sex couples cannot marry or obtain a civil partnership. Apart from this, they are discriminated which in the majority of cases begins from their own homes.
Despite of some changes in the social mindset, Gays in India are easy targets for criminalization, all because of the law that does not grant same-sex relations sanctity that is their due. Marriages and even adoption rights are a distant dream for homosexuals in India. Primarily due to religious edicts against homosexuality, homosexual sexual intercourse (especially sodomy) have been considered a crime in many cultures in spite of its consensual acts.
The LGBT community is no longer a minority community. A lot of people hailing from different backgrounds are identifying themselves as LGBTQ. It is no more about a couple of people struggling for their rights, we as a responsible member of society should join hands to protect the interests of the homosexuals and their upliftment, as they are citizens of the same country and the humans of the same planet. The Supreme Court of India has recognized the right to choose a sexual identity as a fundamental right under Article 21. Non- recognition of rights of the LGBTQ community is a blatant violation of the various provision of Constitution of India and of various conventions that India is a signatory to.