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THE HISTORY OF HOMOSEXUALITY IN INDIA AND THE NAVTEJ SINGH JOHAR CASE: NAVIGATING THE ROAD AHEAD
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THE HISTORY OF HOMOSEXUALITY IN INDIA
AND THE NAVTEJ SINGH JOHAR CASE: NAVIGATING THE ROAD AHEAD
AUTHORED BY - ANURAG NAIR
ABSTRACT:
Homosexuality
is a term used to describe a sexual relation wherein both the partners belong
to the same gender or of same gender but different denominations. As, such they
have faced legal proscription for hundreds of years for engaging in a so called
“unnatural relationships”. The Abrahamic
Faiths were particularly vicious in punishing instances of homosexuality, with
the Torah, specifically prohibiting homosexual acts{Leviticus:18:22}[a man
shall not lie with another man as he would with a woman1]. The
Homosexuals Tthe traditions that preceded them., for example the English “Acte
for the vice of Buggerie” of 15332 that laid the basis for all anti-homosexuality
laws exported all over the world by British colonialism.
It was a
British made law that forced Indian homosexual citizens to remain”in the closet
“so as to speak. SECTION 377 of the INDIAN PENAL CODE describes Unnatural
Offence:” Whoever, willingly has intercourse against the order of nature with
any man, woman or animal shall be punished with imprisonment for life or with
imprisonment of either period which may extend to ten years and shall also be
liable to fine.3. The whole concept of homosexuality was considered
sinful as it was an act in subversion to natural order and against Victorian
Morality by the drafter of the code Lord Thomas Babbington Macaulay. It took until 2018, when the landmark case of
Navtej Singh Johar V.S. Union Of India, for the Indian Supreme Court to
unanimously overrule this section. .
This
article seeks to explore the history of Homosexuality, Decriminalisation and the
challenges that lie ahead for the LGBTQ community after the Navtej Singh Johar
Case.[1]
LITERATURE REVIEW
[1]
RITWIK .M,[CASE COMMENT ON NAVTEJ SINGH JOHAR V.UNION OF INDIA, BLOG.IPLEADERS [2019]
This
article talks about the general facts surrounding the case and its general
analysis and how we can keep up the momentum.
[2]
LGBT people and the law, Human Rights Watch[2023]
This
website highlights the struggles of lgbtq+ people in living a dignified life in
more than 60+ constituencies around the world.
[3] Mehrotra
D ,The precolonial history of homosexuality in India: why love is not western, Lawoctopus[2021]
This is one
in a series of three articles that debunk the myth that homosexuality is a
western import in India by citing examples from Indian mythology and literature to prove otherwise.
[3] Shaikh .L, Navtej Singh Johar V.S .Union of India
,Lawcian
This
article is a legislative comment on the Navtej Singh Johar Case and its
circumstances and the suggestions made for securing a dignified life for
homosexuals.
[4]
Bhatt.R., Re-imagining our futures four years after Navtej Singh Johar, Newsclick
[2022]
This
article chronicles the feelings and emotions of a queer lawyer Rohin Bhatt in
the backdrop and aftermath of the famed 2018 case and what ambitions he holds
for the future.
[5]
Sarah, T. ‘Gender fluidity will slowly dissolve the rigid opposition to it- an
interview with transgender rights activist Vyjayanti Mogli, The Leaflet[2023]
This
article deals with the realities on the ground even after 5 years of the Johar
Case judgement and how the deepseated stigma has halted any significant
developments.
[6]” Three
years of Section 377 and it’s impacts on deep rooted pockets of India,” CNBC
TV18[2021]
This
article talks about the impact of Navtej Singh Johar on the small villages and
towns of India and how can we make a more secular India.
[7] “Everyone
has the right to choose their gender says Rajasthan High Court,” CNBC
T.V.18[2023]
This
article talks about the Rajasthan high court judgement in the case of a
sexually reoriented female constable , which said that gender identity is the
most crucial aspect of anyone’s identity and that there were more than two
types of sexes.
RESEARCH PROBLEMS FOUND
The
existing policies regarding the treatment of homosexual individuals has not
addressed their concerns of healthcare and amenities and also has done nothing
to mitigate the decades ld stigma against the lgbtq community.
QUESTIONS
OF RESEARCH
[1] WHETHER
HOMOSEXUALITY IS A WESTERN IMPORT OR NOT ?
[2] WHAT
WAS THE EFFECT OF SECTION 377 ON THE LGBTQ COMMUNITY?
[3] WHAT
WERE THE EFFORTS TOWARDS DE-CRIMINALISATION?
[4] WHAT IS
THE PATH AHEAD?
RESEARCH METHODOLOGY
This
Research is a Doctrinal and Exploratory research based on factfinding from
various secondary data like case reports, articles etc. Mainly the information
has been inferred from case reports and interviews with LGBTQ rights activists.
HISTORY OF
HOMOSEXUALITY IN INDIA
For many detractors of the decriminalisation of homosexuality, the
concept of homosexual relations is decidedly a foreign export brought to India
by the colonisers. But this notion is
decidedly flawed.
On the contrary to many beliefs, the concept of homosexuality is not a
western import as is believed by many people, but is also an indigenous trend
that has found credence in many instances of Indian history. The fluidity of
gender is an acknowledged concept in Ancient India, from ancient epics to
scriptures and poetry, such as:
[1] In the Krittivasa Ramayana, the King Bhagiratha was said to be borne
of two women.4
[2] Matsya Purana has an interesting tale of how Lord Vishnu transitioned
into his “Mohini “avatar to trick the asuras
into giving up their share of amruta derived from the Samudra Manthan.
[3] Kamasutra by Vatsyayana mentions oral sexual acts performed amongst
transgender persons and also mentions svairini , self willed women that engage
in sexual activities with other women.Coolectively, Vatsyayana termed such
individuals as Tritiya Prakriti or third nature.5[2]
[3] The Mughal Emperor Babur in his memoir” The Baburnama” enunciated his
attraction to a boy named Baburi in Kabul and expresses his lament at his
unfortunate condition” May none be as I, humbled and wretched and lovesick;
No beloved as thou art to me,cruel and careless.”.
[4] The Sufi Saint Bulleh Shah also potrayed the fluidity of sexuality
and love for his murshid Shah Inayat in his works.
[5] The KhajurahoTeemple built by the Chandela Dynasty depicts homoerotic
sculptures on its walls.
[6] The Konark Sun Temple in Orissa also exhibits erotic scenes from the
Kamasutra on its exterior.
[7] The Buddhist monastic caves at Ajanta and Ellora depict women and men
making love to the same sex.
Such depictions were astounding for the colonisers who took measures to
control such vivid eroticism by imposing Victorian Morality principles on the
Indian Public.
Now that we have established that Homosexuality is not a western import but
the repression of homosexuality is , we can
safely set this misconception aside and focus on the real issues.
EFFECT OF
SECTION 377 ON THE POPULACE
The Section 377 was a draconian law imposed on the populace by the
Colonising British to appease their notions of Victorian morality and fulfil a
self imposed burden of civilising the so called inferior races. Armed with a
pseudo scientific theory of race and Victorian morality , they released a draconian
law so as to suppress” the inherent primitive and beastial”[ according to them]
tradition of public expression of homoeroticism and homosexuality. Before Navtej Singh Johar Judgement all
homosexuals remained anonymous and sometimes unaccepting of their sexual
orientation so as to not be labelled as anti-natural by their heterogenous
peers and not suffer societal ostracization imposed by religious leaders and
family members. Section 377 not only took away their freedoms but also
restricted their bodily autonomy and effectively ostracised them from society.
As such people were long protesting against this draconian provision that subjected
a select community to human rights violations. The first known protest for
lgbtq rights in India took place in 1992, led by the AIDS Bhedbhav Virodhi
Andolan or ABVA in Connaught Place in Delhi. ABVA also file a PIL in Delhi High
Court in 1994 againt the Section 377, in the process giving India it’s first
ever gay-rights advocate Siddartha Gautama. In furtherance of this agenda, the
first ever PrideParade of India was held in Kolkata in 1999 with a message of
taking pride in being gay. But while there was resistance against the law, we
must remember that the apparatus of justice was itself biased against the homosexuals
as illustrated in the Bharosa Trust scandal where the mere possession of
homoerotic memorabilia by some members of the trust was construes to be, by the
court” a curse on society”.
EFFORTS TO DECRIMINALISE 377
The Navatej Singh Johar case was not the forst case to be filed that
dealt with the circumstances of homosexuals in India , but it was the one that
had the most definitive result.
[1] NAZ
FOUNDATION V.S. GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI, 2009
The Naz Foundation6 .a NGO committed to HIV-AIDS prevention
and awareness , filed a lawsuit in the High Court of Delhi and sought to decriminalise homosexuality
under Section 377 of the IPC as it led to hindrances in their initiatives with
the belief that Aids only spread through the Homosexual community and that
touching an AIDS patient is a taboo. T he High Court dismissed their petitions
citing lack of locus standi of the petitioner. An appeal was drafted to the
Apex Court , which upon further examination , found section 377 to be creating an unreasonable
classification in targeting homosexuals, Public disgust was not held to be a
ground for criminalising homosexuality.. Section 377 was held
unconstitutional as far as governing the
consensual private acts of majors is concerned.
[2] SURESH
KUMAR KOUSHAL &ANR. V.S. NAZ FOUNDATION &ORS., 20137
The petitioner Suresh Koushall challenged the decision of the
Apex Court in the Naz Foundation Case wherein the court decriminalised
homosexuality in a limited sense. The petitioner contended that[1] the court
cannot usurp the Legislature;[2] Section 377 is gender neutral and thus non violative
of Article 14; [3]If homosexuality is legalised, then the institution of
marriage and the social order would breakdown. The Apex Court bench of Justice
G.S. Singhvi and Justice S.J. Mukhopadhaya over turned the Naz Foundation case
remarking”the homosexuals are aminiscule minority in our country and laws need
not be changed for their interests.” And that if 377 was violative of any
provision ,it would have been struck down lomg ago.[3]
NAVTEJ
SINGH JOHAR & ORS V.S. UNION OF INDIA THR. SECRETARY, MINISTRY OF LAW AND
JUSTICE
FACTS IN
BRIEF
On April27,2016 a writ petition challenging the validity of Section 377
was filed in the Supreme Court by Petitioners Navtej Singh Johar8,
Sunil Mehra Ritu Dalmia, Aman Nath, Keshav Suri and Ayesha Kapur. The
petitioners argued for the first time that they have all been directly
aggrieved by the section and alleged that it violates their fundamental rights.
The petitioners sought the decreeing of Section 377 as unconstitutional and the
inclusion of Right to sexual autonomy and Right to choose a sexual partner
under Article 21 of the Constitution. Also contended were the facts that
Section 377 has no intelligible differentia between natural and unnatural,
furthermore it also has a “chilling effect on Right to Freedom and Expression
by denying the expression of sexual identity. They also contended that it
violated the Right to Privacy as laid down in the Puttaswamy Judgement by
putting LGBTQ individuals at risk due to social ostracization due to their
choice of partners. Opposing this
petition were the Union of India and several organisations like the Apostlic
churches.
ISSUES TO
BE DEALT WITH
[A] Whether the rationale adopted in the Suresh Kumar Koushal case is
sound or not?9
[B] Whether Section 377 is violative of Right to Equality and Right
against Discrimination?
[C] Whether Section 377 is in violation of Right To Privacy as laid down
in the case of Justice Puttaswamy v.s. Union Of
India?
[D] Whether Section 377 adversely affect the Right to Free Speech and
Expression by restricting gender expression of LGBTQ Community?
JUDGEMENT
The Indian Supreme Court ‘s Five Judge Bench unanimously held the Section
377 of the IPC to be unconstitutional in relation to consensual ,private
actions. The court overruled the Suresh Kumar Koushal V.S. Naz Foundation
precedent which had previously upheld the constitutionality of Section 377. The
court relied on the following judgements to decide this case :
[1] The judgement of ‘ NATIONAL LEGAL SERVICES AUTHORITY V.S. THE UNION
OF INDIA[2014] to reiterate the inseperabilityof gender identity from one’s
personality and to deny it would be violation of one’s dignity.
[2] The judgement of ‘K.S. PUTTASWAMY V.S. UNION OF INDIA[2017] to
determine that Section 377 violated the right to privacy as it regulated
private consensual carnal affairs between two consenting majors.
[3] The judgement of ‘SHAKTI VAHINI VS UNION OF INDIA’ to reaffirm the
right of a person to choose their life partner.
The court was of the view that intimacy between same-sex partners is
beyond the legitimate interests of states.
The opinions of individual judges were :
[1] CHIEF JUSTICE DIPAK MISHRA
Argued that constitution should steer the state of today from a
patriarchal stste to a liberal one in which human rights are firmly protected.
Also stated that constitutional morality will always prevail over public
morality
[2] JUSTICE ROHINTON NARIMAN
Argued that the rationale behind Section 377, that of Victorian morality
is long gone and there is no reason for it’s continuance.Indian government
should take steps eradicate the stigma faced by LGBTQ+ people and sensitise
Government personnel about them.
[3] JUSTICE D.Y. CHANDRACHUD
Argued that Section 377 basically erases the identity of homosexuals and
impedes their rights and access to healthcare. Stressed to give the community
equal protection of law and “equal citizenship” in all their manifestations.
[4] JUSTICE INDU MALHOTRA
Argued that homosexuality is a mutation in sexual orientation not a fata
variance.’ History owes an apology to
LGBT group leaders for the delay in redressing the ignominy and ostracism they
have experienced over the years.
EFFECT OF
THE JUDGEMENT ON THE SOCIETY
The case was a landmark case in Indian jurisprudence. It garnered appreciation from civil society institutions
around the world , like Amnesty International and Human Rights Watch. It
overturned the earlier ruling of Suresh Kumar Koushal case , which was
contemptuous at best and antagonistic at worst to the minority LGBT
community. It held that naturalness of an act could not be used to determine
legality and that constitutional morality always trumps public morality. The
judgement brought great joy to many homosexual individuals who no longer felt
like their whole lives were tightly regulated due to their sexual orientation.
No more did they live in fear of being ostracised from family and society
because of something they cannot control. They also did not have to suffer
institutional violence anymore as 377 was rendered all but a black letter
without any real tooth. But this alone
is not enough to mitigate the centuries of stigma faced by such individuals
because of their unnatural orientations.
OPINION OF
AUTHOR
The author
is of the opinion that this judgement alone is not enough. As even a cursory
glance at history will tell you, institutionalised oppression of so called
unnatural practices has been prevalent for centuries.. This creates a milieu of
fear for homosexual individuals that drives them to repress their true desires
and do things that they would otherwise not do, there were some exceptions who
proudly came out of the closet ’so as to speak
but they were either supressed or silenced. Also such a milieu cretes
feelings of disgust within the individual due to the attached criminality. This
judges did their work judiciously and courageously upheld the constitutional
morality and indicated a pragmatic shift of Indian society towards a liberal
one, as at the end of the day , judges are individuals that are influenced by
their individual milieus and this influence more often than not colours their
judgements, no matter how much pne preaches the impartiality of law. But more work needs to be done to make India truly
a place where the phrase “We the people” truly means each and every person of
the country regardless of their differences. Till then this phrase remains as
hollow as the phrase “We the people” in the U.S.A’s Declaration of
Independence, when chattel slavery was still not abolished and “we the people”
only meant the people who are white. The contemporary issues are
[1] India
still lacks any Anti-Discriminatory law and homosexuals are sstill
discriminated against with no social security schemes targeted at them.
[2] There
has still been no steps by the government to carry out sensitisation programmes
and welfare measures aimed at homosexual individuals.
[3] There
is no unanimous assent on same sex marriage
[4] The
access to healthcare for the homosexuals is shaky at best.
[5] While
the case has brought the community to light, only a fraction of them have any
credible support system.
While the
case has brought the LGBTQcommunity and their struggles to the limelight and
initiated conversations about them, I it is still not enough.
We have a
long way to go before any member of the LGBT community is treated like a
bonafide citizen of India without having to resort to hiding away their true
selves.
BIBLIOGRAPHY
[1] TORAH [LEVITICUS 18:22]
[2] ENGLISH BUGGERIE ACT,
1533: REPRESSION OF HOMOSEXUALS IN HISTORY
[3] INDIAN PENAL CODE 1860
[45 OF 1860]
[4] Mehrotra D ,The precolonial history of
homosexuality in India: why love is not western, Lawoctopus[2021]
[5] Shaikh
.L, Navtej Singh Johar V.S .Union of India ,Lawcian
[6] Bhatt.R., Re-imagining our futures four years
after Navtej Singh Johar, Newsclick [2022]
[7] Sarah,
T. ‘Gender fluidity will slowly dissolve the rigid opposition to it- an
interview with transgender rights activist Vyjayanti Mogli, The Leaflet[2023]
[8] ]” Three
years of Section 377 and it’s impacts on deep rooted pockets of India,” CNBC
TV18[2021]
[9] Everyone
has the right to choose their gender says Rajasthan High Court,” CNBC
T.V.18[2023]
[10] NAZ FOUNDATION VS UNION OF INDIA[2009] AIR 2009
[11] SURESH KUMAR KOUSHAL VS NAZ FOUNDATION[2013]
CIVIL APPEAL NO.10972 OF 2013
[12] NAVTEJ SINGH JOHAR VS UNION OF INDIA THR..
SECRETARY FOR MINISTRY OF LAW AND JUSTICE
[13]
NATIONAL LEGAL SERVICES AUTHORITY V.S. UNION OF INDIA
[14] SHAKTI
VAHINI V.S. UNION OF INDIA
4 Mehrotra D, The Precolonial
History of Homosexuality in india: Whylove is not western [Part I/III] [2021]
Acadamike by LawOctopus https://www.lawoctopus.com/academike/history-of-homosexuality-in-india
accessed 25 September 2023.
5
Vatsayayana, The Kamasutra, [published by Hinoo Kama Shastra Society][1988]
7
SURESH KUMAR KOUSHAL VS NAZ FOUNDATION[2013] CIVIL APPEAL NO.10972 OF 2013
8
NAVTEJ SINGH JOHAR VS UNION OF INDIA THR.. SECRETARY FOR MINISTRY OF LAW AND
JUSTICE
9
Ritwik M,CASE COMMENT ON NAVTEJ SINGH JOHAR V.S. UNION OF INDIA[2019]
BLOG.IPLEADERS
accessed on 25September 2023.
Article Information
THE HISTORY OF HOMOSEXUALITY IN INDIA AND THE NAVTEJ SINGH JOHAR CASE: NAVIGATING THE ROAD AHEAD
Authors: KANURAG NAIR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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