ISSUES AND RIGHTS OF LGBT IN INDIA: A LEGAL STUDY Authored by - Dr. Swapnil Tripathi, & Dr. Mayank Shekher Tiwari,
ISSUES AND
RIGHTS OF LGBT IN INDIA: A LEGAL STUDY
Authored by - Dr. Swapnil Tripathi,
Assistant Professor, Nehru Gram Bharti
Deemad To Be Univercity , Prayagraj.
Dr. Mayank Shekher Tiwari,
Assistant Professor, Mathura College of Law ,
Mirzapur, Uttar Pradesh.
Abstract
Lord Macaulay drafted the IPC in
1860 and enacted in 1861. Haplessly, we are still bearing the odds of Section
377 of the IPC, which was drafted 156 years ago. Though the IPC introduced in
1860, it was amended in 1935 only and included the oral sex. It has
earlier been restricted to anal sex in 1884. It continues to be
applicable to non-consensual and non-vaginal sex. In the case of Khanu Vs.
Emperor (1925), it was held that “the natural object of sexual intercourse
is that there should be the possibility of conception of human beings”. Since
inception, homosexuality has been a matter of debate across the world. In
Britain, King Edward VI went on to repeal the Buggery Act, an anti-sodomy law,
a number of times in 1548 only, it is to be re-introduced 15 years later.
Denmark became the 1st country in 1989 to grant the same rights to same-sex
partners as to married partners with Norway, apartheid Africa enshrined gay
rights in its constitution. In the light of the land mark judgment delivered in
Obergfell Vs. Hodges[1],
the USA in its constitution made 14th Amendment as “the state shall not deprive
any person of life, liberty or prosperity without due process of law and the
state shall not deny any person ‘the equal protection of the laws”. By
reckoning the sensitivity, and a humungous criticism from all quarters, the
Apex court bestowed the issue to the Five Men Bench, which is yet to be
delivered its verdict. It is an augur well for the LGBT community that the Apex
Court on 15-04-2014, declared that transgender people as a socially and
economically backward class entitled to reservations in education and job and
also directed the Central and State Governments to frame the welfare schemes
for them. Further on 24-04-2015, the Rajya Sabha passed the Rights of
Transgender Persons Bill, 2014 guaranteeing rights and entitlement allowances
and skill development for the Transgender people. By reckoning the rapid
changing circumstances in the LPG scenario, it is positively extrapolates that
the Full Bench of the Apex Court will certainly deliver its verdict in the
interest and well-being of the LGBT community.
Key Woards: Unnatural Offenses, Homosexuality, Etymology And Usage,
Sexuality And Gender Identity, Sexual Identity Development, Social Construct,
Same-Sex Romance And Relationships, Demographics, Homosexuality And Psychology.
1.1
UNNATURAL OFFENSES
The debate
about the removal of section 377 from the Indian Penal Code, 1860 has been
raging in India for many years, it gained momentum after the Naz Foundation, an
NGO based in Delhi filed a case in the Delhi High Court seeking deletion of
this section on the grounds that it violates the fundamental rights granted to
the citizens of India by the Constitution of India. Though this section does
not specifically mention the word “Homosexuality”, it covers the same under the
sweeping definition of “Unnatural Offenses”.
1.2 DEFINITION OF UNNATURAL OFFENSES UNDER SECTION 377 OF
THE INDIAN PENAL CODE, 1860:
“Whoever
voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to file”
Explanation: Penetration is sufficient to constitute the carnal inter
course necessary offense described in this section.
This section
is intended to punish the offense of ‘sodomy’, ‘buggary’ and ‘bestiality’. The
offense consists in a carnal knowledge committed against the order of the
nature by a person with a man, or in the same unnatural manner with a woman or
by a man or woman in any manner with an animal. As in rape so also in an
unnatural offense, even the slightest degree of penetration is enough and it is
not necessary to prove the completion of the intercourse by the emission of
seed[2]. Under Sexual Offenses Act, 1967,
‘buggery’ is no longer an offense in England if committed in Private between
two consenting adults of and above the age of 21. This Act has however, been
criticized even in England as negating states’ right to suppress a social
voice.
In a case arising out of unnatural offence, it was held that
the acts alleged against the accused falling into two categories (1) sexual
intercourse per OS (mouth) and (2) manipulation and moment of penis of the
accused whilst being held by the victims in such a way as to create orifice
like thing for making manipulated moment of insertion and withdrawal till
ejaculation of simen, fell within the sweep of unnatural carnal offenses and
quashing of proceedings was not warranted[3].
1.3
HOMOSEXUALITY
Homosexuality
is romantic or sexual attraction or behavior among members of the same sex or
gender. As a sexual orientation, homosexuality refers to "an enduring
pattern of or disposition to experience sexual, affectional, or romantic
attractions" primarily or exclusively to people of the same sex[4]; “it also refers to an individual's
sense of personal and social identity based on those attractions, behaviors
expressing them, and membership in a community of others who share them[5]”.
Homosexuality
is as old as humanity. The queer practices were secretly existent among the
queens in harems, cowherds, soldiers, slaves, prisoners, nuns, priests,
harvesting women and the highly spinning maidens in the olden days. The
instances of “Ghilman” in Islam, “Sodom and Gomorrah” in Christianity, and
“Ardhanarishwar” in Hinduism testify further to the ancient inscriptions of
homosexuality in the prominent religions of the world[6].
Homosexuality
is one of the three main categories of sexual orientation, along with
bisexuality and heterosexuality within the heterosexual-homosexual continuum.
The longstanding consensus of the behavioral and social sciences and the health
and mental health professions is that homosexuality is a normal and positive
variation in human sexual orientation[7], though many religious societies,
including Catholicism[8] , Mormonism[9] and Islam and some psychological
associations, such as NARTH, teach that homosexual activity is sinful or
dysfunctional[10].
The most
common adjectives in use are lesbian for women and gay for men, though gay can
refer to either men or women. The number of people who identify as gay or
lesbian and the proportion of people who have same sex sexual experiences are
difficult for researchers to estimate reliably for a variety of reasons[11]. In the modern West, according to
major studies, 2% to 13% of the population are homosexual[12]. A study conducted in the year 2006
suggested that 20% of the population anonymously reported some homosexual
feelings, although relatively few participants in the study identified
themselves as homosexual. Homosexual behavior in animals is also widely
encountered.
Many gay and
lesbian people are in committed same-sex relationships. These relationships are
equivalent to heterosexual relationships in essential psychological respects.
Homosexual relationships and acts have been admired, as well as condemned,
throughout the recorded history, depending on the form they took and the
culture in which they occurred. Since the end of the 19th century, there has
been a movement towards increased visibility, recognition and legal rights for
homosexual people, including the rights to marriage and civil unions[13], adoption and parenting, employment,
military service and equal access to health care[14].
1.4
ETYMOLOGY AND USAGE
The word
‘homosexual’ is a Greek and Latin hybrid with the first element derived from
Greek homos, 'same', thus connoting sexual acts and affections between
members of the same sex, including lesbianism. ‘Gay’ generally refers to male
homosexuality, but may be used in a broader sense to refer to all LGBT people.
In the context of sexuality, ‘lesbian’ refers only to female homosexuality. The
word "lesbian" is derived from the name of the Greek island Lesbos, where
the poet Sappho wrote largely about her emotional relationships with young
women.
The
adjective ‘homosexual’ describes the behavior, relationships, people,
orientation, etc. The adjectival form literally means "same sex",
being a hybrid formed from Greek homo, and "sexual" from Medieval
Latin sexualis. Many modern style guides in the U.S. recommended against
using homosexual as a noun, instead of using gay man or lesbian. Similarly,
some recommended completely avoiding the usage of homosexual as it has a
negative, clinical history and because the word only refers to one's sexual
behavior and thus it has a negative connotation. Gay and lesbian are the most
common alternatives. The first letters are frequently combined to create the
abbreviation LGBT (sometimes written as GLBT), in which B and T refers to
Bisexual and Transgender people.
1.5
SEXUALITY AND GENDER IDENTITY
Sexual
orientation is commonly discussed as a characteristic of the individual, like
biological sex, gender identity or age[15]. This perspective is incomplete
because sexual orientation is always defined in relational terms and
necessarily involves relationships with other individuals. Sexual acts and
romantic attractions are categorized as homosexual or heterosexual according to
the biological sex of the individuals involved in them, relative to each other.
Indeed, it is by acting or desiring to act with another person that individuals
express their heterosexuality, homosexuality or bisexuality. This includes
actions as simple as holding hands with or kissing another person. Thus, sexual
orientation is integrally linked to the intimate personal relationships that
human beings form with others to meet their deeply felt needs for love,
attachment and intimacy. In addition to the sexual behavior, these bonds
encompass nonsexual physical affection between partners, shared goals and
values, mutual support and ongoing commitment.
1.6 SEXUAL IDENTITY DEVELOPMENT: "COMING-OUT
PROCESS"
Many people
who feel attracted to members of their own sex have a so-called "coming
out" at some point in their lives. Generally, coming out is described in
three phases. The first phase is the phase of "knowing oneself," and
the realization emerges that one is open to the same-sex relations. This is
often described as an internal coming out. The second phase involves one's
decision to come out to others, e.g. family, friends, and/or colleagues. The
third phase more generally involves living openly as an LGBT person. At this
age, they may not trust or ask for help from others, especially when their
orientation is not accepted in society. Sometimes their own families are not
even informed.
1.7
GENDER IDENTITY
The earliest
writers on a homosexual orientation usually understood it to be intrinsically
linked to the subject's own sex. For example, it was thought that a typical
female-bodied person who is attracted to female-bodied persons would have
masculine attributes and vice versa. This understanding was shared by most of
the significant theorists of homosexuality from the mid-19th century to early
20th century, such as Karl Heinrich Ulrichs, Richard Von Krafft-Ebing, Magnus,
Hirschfeld, Havelock Ellis, Carl Jung and Sigmund Freud, as well as many gender
variant homosexual people themselves. However, this understanding of
homosexuality as sexual inversion was disputed at the time and through the
second half of the 20th century, gender identity came to be increasingly seen
as a phenomenon distinct from sexual orientation.
Transgender
and cisgender people may be attracted to men, women or both, although the
prevalence of different sexual orientations is quite different in these two
populations. An individual homosexual, heterosexual or bisexual person may be
masculine, feminine, or androgynous, and in addition, many members and
supporters of lesbian and gay communities now see the “gender-conforming
heterosexual” and the “gender-nonconforming homosexual” as negative
stereotypes.
1.8
SOCIAL CONSTRUCT
Because a
homosexual orientation is complex and multi-dimensional, some academics
researchers, especially in Queer studies, have argued that it is a historical
and social construction. In 1976 the historian Michel Foucault argued that
homosexuality as an identity did not exist in the 18th century; that people
instead spoke of "sodomy" which referred to sexual acts. Sodomy was a
crime that was often ignored but sometimes punished severely.
The term
‘homosexual’ is often used in European and American cultures to encompass a
person's entire social identity, which includes self and personality. In
Western cultures some people speak meaningfully of gay, lesbian and bisexual
identities and communities[16]. In other cultures, homosexuality
and heterosexual labels don't emphasize an entire social identity or indicate
community affiliation based on sexual orientation. Some scholars, such as David
Green, state that homosexuality is a modern Western social construct and as
such cannot be used in the context of non-Western male-male sexuality, nor in
the pre-modern West.
1.9
SAME-SEX ROMANCE AND RELATIONSHIPS
People with
a homosexual orientation can express their sexuality in a variety of ways, and
may or may not express it in their behaviors. Some have sexual relationships
predominantly with people of their own gender identity, another gender,
bisexual relationships or they can be celibate. Research indicates that many
lesbians and gay men want and succeed in having, committed and durable
relationships. For example, survey data indicate that between 40% and 60% of
gay men and between 45 % and 80% of lesbians are currently involved in a
romantic relationship. Survey data also indicates that between 18% and 28% of
gay couples and between 8% and 21% of lesbian couples in the U.S. have lived
together ten or more years. Studies have also found same-sex and opposite-sex
couples to be equivalent to each other in measures of satisfaction and
commitment in romantic relationships that age and gender are more reliable than
sexual orientation as a predictor of satisfaction and commitment to a romantic
relationship and that people who are heterosexual or homosexual share
comparable expectations and ideals with regard to romantic relationships[17].
1.10
DEMOGRAPHICS
Reliable
data as to the size of the gay and lesbian population is of value in informing public
policy. For example, demographics would help in calculating the costs and
benefits of domestic partnership benefits of the impact of legalizing gay
adoption. Further, knowledge of the size of the "gay and lesbian
population holds promise for helping social scientists understand a wide array
of important questions about the general nature of labor market choices,
accumulation of human capital, specialization within households,
discrimination, and decisions about geographic location.
Measuring
the prevalence of homosexuality may present difficulties. The research must
measure some characteristic that may or may not be defining of sexual
orientation. The class of people with same sex desires may be larger than the
class of people who act on those desires, which in turn may be larger than the
class of people who self-identify as gay/lesbian/bisexual.
1.11
HOMOSEXUALITY AND PSYCHOLOGY
‘Psychology’
was one of the first disciplines to study a homosexual orientation as a
discrete phenomenon[18]. The first attempt to classify
homosexuality as a disease was made by the fledgling European sexologist
movement in the late 19th century. In 1886 noted sexologist Richard Von
Krafft-Ebing listed homosexuality along with 200 other case studies of deviant
sexual practices in his definitive work, Psychopathia Sexualis. Krafft-Ebing
proposed that homosexuality was caused by either “congenital [during birth]
inversion” or an “acquired inversion”. In the last two decades of the 19th
century, a different view began to predominate in medical and psychiatric
circles, judging such behavior as indicative of a type of person with a defined
and relatively stable sexual orientation. In the late 19th century and early
20th century, pathological models of homosexuality were standard.
The American
Psychological Association, the American Psychiatric Association, and the
National Association of Social Workers state:
“In 1952,
when the American Psychiatric Association published its first Diagnostic and
Statistical Manual of Mental Disorders, homosexuality was included as a
disorder. Almost immediately, however, that classification began to be
subjected to critical scrutiny in research founded by the National Institute of
Mental Health. That study and subsequent research consistently failed to
produce any empirical or scientific basis for regarding homosexuality as a
disorder or abnormality, rather than a normal and healthy sexual orientation.
As results from such research accumulated, professionals in medicine, mental
health, and the behavioral and social sciences reached the conclusion that it
was inaccurate to classify homosexuality as a mental disorder and that the DSM
classification reflected untested assumptions based on once-prevalent social
norms and clinical impressions from unrepresentative samples comprising
patients seeking therapy and individuals whose conduct brought them into the
criminal justice system”.
In
recognition of the scientific evidence, the American Psychiatric Association
removed homosexuality from the DSM in 1973, stating that "homosexuality
per se implies no impairment in judgment, stability, reliability, or general
social or vocational capabilities." After thoroughly reviewing the
scientific data, the American Psychological Association adopted the same
position in 1975, and urged all mental health professionals "to take the
lead in removing the stigma of mental illness that has long been associated
with homosexual orientations." The National Association of Social Workers
has adopted a similar policy.
Thus, mental
health professionals and researchers have long recognized that being homosexual
poses no inherent obstacle to leading a happy, healthy, and productive life,
and that the vast majority of gay and lesbian people function well in the full
array of social institutions and interpersonal relationships.
The research
and clinical literature demonstrate that same-sex sexual and romantic
attractions, feelings, and behaviors are normal and positive variations of
human sexuality. The longstanding consensus of the behavioral and social
sciences and the health and mental health professions is that homosexuality per
se is a normal and positive variation of human sexual orientation. There is now
a large body of research evidence that indicates that being gay, lesbian or
bisexual is compatible with normal mental health and social adjustment. The
World Health Organization's ICD-9 (1977) listed homosexuality as a mental
illness; it was removed from the lCD-10, endorsed by the Forty-third World
Health Assembly on May 17, 1990. Like the DSM-II, the ICD-10 added ego-dystonic
sexual orientation to the list, which refers to people who want to change their
gender identities or sexual orientation because of a psychological or
behavioral disorder. The Chinese Society of Psychiatry removed homosexuality
from its Chinese Classification of Mental Disorders in 2001 after five years of
study by the association. According to the Royal College of Psychiatrists"
This unfortunate history demonstrates how marginalisation of a group of people
who have a particular personality feature (in this case homosexuality) can lead
to harmful medical practice and a basis for discrimination in society, still
there is now a large body of research evidence that indicates that being gay,
lesbian or bisexual is compatible with normal mental health and social
adjustment. However, the experiences of discrimination in society and possible
rejection by friends, families and others, such as employers, means that some
LGBT people experience a greater than expected prevalence of mental health
difficulties and substance misuse problems. Although there have been claims by
conservative political groups in the USA that this higher prevalence of mental
health difficulties is confirmation that homosexuality is itself a mental
disorder, there is no evidence whatever to substantiate such a claim.
1.12
CONLUSION:
Most of the
Lesbian, Gay, and Bisexual people who seek psychotherapy do so for the same
reasons as heterosexual people (stress, relationship difficulties, difficulty
in adjusting to social or work situations, etc.); their sexual orientation may
be of primary, incidental, or no importance to their issues and treatment.
Whatever the issue, there is a high risk for anti-gay bias in psychotherapy
with the lesbian, gay, and bisexual clients. Psychological research in this
area has been relevant to counteracting prejudicial ("homophobic")
attitudes and actions, and to the LGBT rights movement generally. a landmark decision of the Supreme
Court of India that decriminalised all consensual sex among adults, including
homosexual sex.[19]
The appropriate application of affirmative psychotherapy is
based on the following scientific facts:
·
Same-sex
sexual attractions, behavior, and orientations per se are normal and
"positive variants of human sexuality; in other words, they are not
indicators of mental or developmental disorders.
·
Homosexuality
and bisexuality are stigmatized, and this stigma can have a variety of negative
consequences (e.g. minority stress) throughout the life span.
·
Same-sex
sexual attractions and behavior can occur in the context of a variety of sexual
orientations and sexual orientation identities.
·
Gay
men, lesbians, and bisexual individuals can live satisfying lives as well as
form stable, committed relationships and families that are equivalent to
heterosexual relationships in essential respects.
·
There
are no empirical studies or peer-reviewed research that support theories
attributing same-sex sexual orientation to family dysfunction or trauma.
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[7] The 2008
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[15] Blashus
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[16] Mohr.
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[17] Bloodsworth-Lugo,
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[18] Bohan,
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[19] Navtej Singh Johar & Ors. v. Union of India thr.
Secretary Ministry of Law and Justice, W. P. (Crl.)
No. 76 of 2016