Homosexuality in India

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Homosexuality is mostly a taboo subject in Indian civil society and for the government. Section 377 of the Indian Penal Code makes sex with persons of same gender punishable by law. On 2 July 2009, in Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court held that provision to be unconstitutional with respect to sex between consenting adults, but the Supreme Court of India overturned that ruling on 11 December 2013, stating that the Court was instead deferring to Indian legislators to provide the sought-after clarity.[1]

Homophobia is prevalent in India.[2][3] Public discussion of homosexuality in India has been inhibited by the fact that sexuality in any form is rarely discussed openly. In recent years, however, attitudes towards homosexuality have shifted slightly. In particular, there have been more depictions and discussions of homosexuality in the Indian news media.[3][4] and in Bollywood.[5] Several organisations, including the Naz Foundation (India) Trust,[6] the National AIDS Control Organisation,[6] Law Commission of India,[7] Union Health Ministry,[8] National Human Rights Commission of India[9] and the Planning Commission of India[10] have expressed support for decriminalizing homosexuality in India, and pushed for tolerance and social equality for lesbian, gay, bisexual, and transgendered people. India is among countries with a social element of a third gender. But mental, physical, emotional and economic violence against LGBT community in India prevails.[11] Lacking support from family, society or police many gay rape victims stay don't report the crimes.[12]

Religion has played a role in shaping Indian customs and traditions. While homosexuality has not been explicitly mentioned in the religious texts central to Hinduism, the largest religion in India, Hinduism has taken various positions, ranging from positive to neutral or antagonistic. Rigveda, one of the four canonical sacred texts of Hinduism says Vikriti Evam Prakriti (Sanskrit: विकृतिः एवम्‌ प्रकृतिः। meaning what seems un-natural is also natural),[13] which some scholars believe recognizees homosexual/transsexual dimensions of human life, like all forms of universal diversities.[14] Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history, and that homosexuals were not necessarily considered inferior in any way until about 18th century.[15]

History[edit]

Legal status[edit]

Section 377 of the Indian Penal Code (IPC) dating back to 1861 makes homosexual sex punishable by law and carries a ten year sentence.[16]

Support for decriminalization[edit]

In September 2006, Nobel Laureate Amartya Sen, acclaimed writer Vikram Seth and other prominent Indians publicly demanded the repeal of section 377 of the IPC.[17] The open letter demanded that "In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down." On 30 June 2008, Indian Labour Minister Oscar Fernandes backed calls for decriminalisation of consensual gay sex, and Prime Minister Manmohan Singh called for greater tolerance towards homosexuals.[18] On 23 July 2008, Bombay High Court Judge Bilal Nazki said that India's unnatural sex law should be reviewed.[19] The Law Commission of India had historically favoured the retention of this section in its 42nd and 156th report, but in its 172nd report, delivered in 2000, it recommended its repeal.[7][20]

On 9 August 2008, then health minister, Anbumani Ramadoss began his campaign for changing Section 377 of the Indian penal code, which makes homosexuality an unnatural act and thus illegal. At the International AIDS Conference in Mexico City, he said, "Section 377 of IPC, which criminalises men who have sex with men, must go."[21] His ministerial portfolio had put him at odds with the Indian Home Minister Shivraj Patil and other several other ministers in seeking to scrap Section 377.[22][23] In late 2008, he changed his argument saying he does not want the scrapping of Section 377 but a mere modification of the law treating homosexuality as a criminal offence punishable up to life imprisonment. He said he wants Prime Minister Manmohan Singh to resolve the matter, while he wanted to avoid discord with the home ministry, who said the altered law would then result in an increase in criminal incidences of sodomy or offences involving sexual abuse of children, particularly boys. In doing so he alleged that the law even penalises health workers who treat homosexuals, while making this a cognizable and non-bailable offence.[22]

The United Nations has urged India to decriminalize homosexuality by saying it would help the fight against HIV/AIDS by allowing intervention programmes, much like the successful ones in China and Brazil. Jeffrey O'Malley, director of the United Nations Development Programme (UNDP) on HIV/AIDS, has stated countries which protect men who have sex with men (MSM) have double the rate of coverage of HIV prevention services as much as 60%.[24] According to him, inappropriate criminalisation hinders universal access to essential HIV, health and social services.[25] Later talking to The Hindu in November 2008, he added concerns that the then in power United Progressive Alliance government was in a difficult position in regarding to amending Section 377 of the Indian Penal Code because of the then upcoming elections, as such changes could be misrepresented. He further emphasized the need to change the laws, sensitise the police and judiciary. According to him, after removal of discriminatory laws, marginalised groups would have better access to treatment and prevention facilities like condoms. He warned of the urgency and stated that India had succeeded in checking the spread of AIDS through commercial sex workers but transmission through gay sex, and injectable-drug users was still an area of concern in the country.[26]

Court proceedings[edit]

In December 2002, Naz Foundation filed a Public Interest Litigation (PIL) to challenge IPC Section 377 in the Delhi High Court.[27] On 4 July 2008, gay activists fighting for decriminalization of consensual homosexuality at the Delhi High Court got a stimulus when the court opined that there was nothing unusual in holding a gay rally, something which is common outside India.[28]

On 2 July 2009, in the case of Naz Foundation v National Capital Territory of Delhi, the High Court of Delhi struck down much of S. 377 of the IPC as being unconstitutional. The Court held that to the extent S. 377 criminalised consensual non-vaginal sexual acts between adults, it violated an individual's fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India. The High Court did not strike down Section 377 completely. It held the section to be valid in case of non-consensual non-vaginal intercourse or to intercourse with minors, and it expressed the hope that Parliament would legislatively address the issue.[29]

On 11 December 2013, on responding an appeal filed by an astrologer Suresh Kumar Koushal and others,[30] the Supreme Court of India upheld the constitutionality of Section 377 of the IPC, and stated that the Court was instead deferring to Indian legislators to provide the sought-after clarity.[1] In its judgment the Supreme Court stated

"We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors... Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality."[31][32]

On 28 January 2014, Supreme Court dismissed the review petition filed by Central Government, Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC.[33]

Religious opposition[edit]

The 11 December 2013 judgement of the Supreme Court, upholding Section 377, was met with support from religious leaders.[34] The main petitioner in the plea was an astrologer, Suresh Kumar Koushal, and other petitioners were religious organizations like All India Muslim Personal Law Board, Trust God Missionaries, Krantikari Manuwadi Morcha, Apostolic Churches Alliance, and Utkal Christian Council.[35][30] The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic attitude. Usually divisive and almost always seen tearing down each other’s religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment." The article added that Baba Ramdev India's well-known yoga guru, after advising that journalists interviewing him not to turn homosexual, stated he could cure homosexuality through yoga and called it a bad addiction.[34]

The Vishwa Hindu Parishad's vice-president Om Prakash Singhal said, "This is a right decision, we welcome it. Homosexuality is against Indian culture, against nature and against science. We are regressing, going back to when we were almost like animals. The SC had protected our culture." Singhal further dismissed HIV/AIDS concerns within the LGBT community saying, "It is understood that when you try to suppress one anomaly, there will be a break-out of a few more."[34]

Maulana Madni, of an Islamic organization, Jamiat Ulema-e-Hind, has echoed similar homophobia in stating that "Homosexuality is a crime according to scriptures and is unnatural. People cannot consider themselves to be exclusive of a society... In a society, a family is made up of a man and a woman, not a woman and a woman, or a man and a man. If these same sex couples adopt children, the child will grow up with a skewed version of a family. Society will disintegrate. If we are to look at countries in the West who have allowed same-sex marriages, you will find the mental tensions they suffer from."

Masorti Rabbi Ezekiel Isaac Malekar, honorary secretary of the Judah Hyam Synagogue, in upholding the judgement, was also quoted as saying "In Judaism, our scriptures do not permit homosexuality." Reverend Paul Swarup of the Cathedral Church of the Redemption in Delhi in stating his views on what he believes to be the unnaturalness of homosexuality, stated "Spiritually, human sexual relations are identified as those shared by a man and a woman. The Supreme Court's view is an endorsement of our scriptures."[34]

Coming-outs and pride parades[edit]

In 2005, Prince Manvendra Singh Gohil, who hails from Rajpipla in the Gujarat, publicly came out as gay. He was quickly anointed by the Indian and the world media as the first openly gay royal. He was disinherited as an immediate reaction by the royal family, though they eventually reconciled. He appeared on the American talk show The Oprah Winfrey Show on October 24, 2007,[36] and on BBC Three's Undercover Princes.[37] In 2008, Zoltan Parag, a competitor at the Mr. Gay International contest said that he was apprehensive about returning to India. He said, "Indian media has exposed me so much that now when I call my friends back home, their parents do not let them talk to me".[38]

On 29 June 2008, five Indian cities (Delhi, Bangalore, Kolkata, Indore and Pondicherry) celebrated gay pride parades. About 2,000 people turned out in these nationwide parades. Mumbai held its pride march on 16 August 2008, with Bollywood actress Celina Jaitley flagged off the festivities.[39] On 4 July 2008, the Delhi High Court, while hearing the case to decriminalize homosexuality, opined that there was nothing unusual in holding a gay rally, something which is common outside India.[40]

Days after the 2 July 2009 Delhi High Court verdict legalizing homosexuality, Pink Pages, India's first online LGBT magazine was released.[41] On 16 April 2009, India's first gay magazine Bombay Dost originally launched in 1990,[41] was re-launched by Celina Jaitley in Mumbai.[42]

On 27 June 2009, Bhubaneswar, the capital city of the Odisha, saw its first gay pride parade.[43] A day later, Union Law Minister Veerappa Moily announced that the Union Home Minister has convened a meeting with the Union Law Ministers, Union Health Ministers and Home Ministers of all states to evolve a consensus on decriminalising homosexuality in India.[44] On 28 June 2009, Delhi and Bangalore held their second gay pride parades, and Chennai, generally considered to be a very conservative city, held its first.[45][46]

Mumbai has one of its own pride events, like Kashish Mumbai Queer Film Festival which was first held in 2010 from 22 to 25 April[47] and in the next year 2011 from 25 to 29 May.[48] It was the first queer film festival in India and is held in a mainstream multiplex theater which screens LGBT films from all over the world.[49][48] It has been recognized by Interpride as a pride event in India.[50]

Madurai celebrated city's first LGBTQ Rainbow festival on 29 July 2012, Anjali Gopalan inaugurated Alan Turing Rainbow festival and flagged off the Asia's first Gender queer pride parade as a part of Turing Rainbow festival organized by Srishti Madurai, a literary and resource circle for alternative gender and sexualities. It was established by Gopi Shankar a student of The American College in Madurai to eradicate social discrimination faced by the LGBT community. The objective of the organisation in to highlight 20 different types of sexual orientation.[51]

The 11th Kolkata Rainbow Pride festival, held on 15 July 2012, was attended by more than 1500 people. It was started in 1999 which was attended by only 15 people.[52]

The first LGBT pride parade in Gujarat state was held in Surat on 6 October 2013.[53]

In 2013, Nolan Lewis , a competitor at the Mr Gay World 2013contest. After returning to India He said, "Many in the main stream society genuinely do not understand what a transgender is ans whats s/he going through."

Recognition of same-sex couples[edit]

See also[edit]

Notes[edit]

  1. ^ a b Shyamantha, Asokan (11 December 2013). "India's Supreme Court turns the clock back with gay sex ban". Reuters. Retrieved 11 December 2013. 
  2. ^ Bedi, Rahul (5 July 2011). "Homophobia persists in India despite court reforms". The Telegraph (UK) (London). Retrieved 3 April 2014. 
  3. ^ a b "Fear and loathing in gay India". BBC News. 17 May 2005. Retrieved 3 April 2014. 
  4. ^ "Why should homosexuality be a crime?". The Times of India. 18 April 2003. Retrieved 3 April 2014. 
  5. ^ Gopinath, Gayatri (2000). "Queering Bollywood: Alternative sexualities in popular Indian cinema". Journal of homosexuality 39: 283–297. PMID 11133137. Retrieved 3 April 2014. 
  6. ^ a b "Anachronistic law". The Hindu (Chennai, India). 1 October 2008. Retrieved 3 April 2014. 
  7. ^ a b "UN 2004 - NGO statement: LGBT rights in India". Geneva: International Lesbian, Gay, Bisexual, Trans and Intersex Association. 27 April 2004. Retrieved 3 April 2014. 
  8. ^ Kounteya Sinha (1 October 2008). "Ramadoss to take up gay rights issue with PM". The Times of India. Archived from the original on 9 October 2008. Retrieved 20 January 2011. 
  9. ^ "Gay rights should be respected, prostitution legalised: NHRC chief". The Times of India. 6 October 2008. Retrieved 12 February 2009. [dead link]
  10. ^ Syeda Hameed (13 December 2005). "The silence around sex work". India Together. Retrieved 3 April 2014. 
  11. ^ "Violence against LGBT groups still prevails in India". DNA India. 24 November 2013. Retrieved 4 April 2014. 
  12. ^ Priya M Menon (16 February 2013). "Lacking support, male rape victims stay silent". The Times of India. Retrieved 4 April 2014. "I did not know how the police would treat a gay man." 
  13. ^ Stephen Hunt; Andrew K. T. Yip (1 December 2012). The Ashgate Research Companion to Contemporary Religion and Sexuality. Ashgate Publishing, Ltd. p. 368. ISBN 978-1-4094-7225-4. Retrieved 4 January 2014. 
  14. ^ Ashok Row Kavi. "Expose the Hindu Taliban!". Rediff.com. Retrieved 4 Jan 2014. 
  15. ^ Ruth Vanita; Saleem Kidwai (18 October 2008). "Indian Traditions Of Love". Tehelka. Retrieved 4 April 2014. 
  16. ^ Harris, Gardiner (11 December 2013). "India’s Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times. Retrieved 4 April 2014. 
  17. ^ Ramesh, Randeep (18 September 2006). "'India's Literary Elite Call for Anti-Gay Law to be Scrapped'". The Guardian (London). Retrieved 4 May 2010. 
  18. ^ "Reverse swing: It may be an open affair for gays, lesbians". The Economic Times. 2 July 2008. Retrieved 3 April 2014. 
  19. ^ Shibu Thomas (25 July 2008). "Unnatural-sex law needs relook: Bombay HC". The Times of India. Retrieved 12 February 2009. 
  20. ^ "Review of Rape Laws". Law Commission of India. March 2000. Retrieved 4 April 2014. 
  21. ^ Kounteya Sinha (9 August 2008). "Legalise homosexuality: Ramadoss". The Times of India. Retrieved 20 January 2011. 
  22. ^ a b Kounteya Sinha (1 October 2008). "Ramadoss to take up gay rights issue with PM". The Times of India. Retrieved 20 January 2011. 
  23. ^ "Gay laws: Patil’s stand finds support in Cabinet". The Indian Express. 17 April 2008. Retrieved 4 April 2014. 
  24. ^ "LGBT Africans demand action on AIDS pandemic ahead of international conference". Pink News. 5 December 2008. Retrieved 4 April 2014. 
  25. ^ "Landmark Delhi High Court decision recognizes inappropriate criminalization as a barrier to health, human rights and dignity". UNAIDS. 7 July 2009. Retrieved 4 April 2014. 
  26. ^ "India going through social change: UN official". The Hindu (Chennai, India). 9 November 2008. 
  27. ^ "Advocacy: Section 377". Naz Foundation (India) Trust. 
  28. ^ "High Court dismisses case against gay rally". Hindustan Times. 4 July 2008. Retrieved 20 January 2011. 
  29. ^ Yuvraj Joshi (21 July 2009). "A New Law for India's Sexual Minorities". The Guardian (London). Retrieved 12 December 2010. 
  30. ^ a b "It is like reversing the motion of the earth". The Hindu (Chennai, India). 21 December 2013. Retrieved 4 April 2014. 
  31. ^ "Live: Govt to legislate against criminalising homosexuality?". First Post (India). 3 April 2014. Retrieved 11 December 2013. 
  32. ^ Suresh Kumar Koushal and others v. Naz Foundation and others (Supreme Court of India 2013). Text
  33. ^ "SC Dismisses Homosexuality Review Plea". The New Indian Express. 28 January 2014. Retrieved 4 April 2014. 
  34. ^ a b c d "Rare unity: Religious leaders come out in support of Section 377". DNA India. 12 December 2013. Retrieved 4 April 2014. 
  35. ^ "Supreme Court upholds Section 377 criminalizing homosexual sex". Live Mint. 11 December 2013. Retrieved 5 April 2014. 
  36. ^ "India's gay prince appears on Oprah show". Rediff. 27 October 2007. Retrieved 4 April 2014. 
  37. ^ "Undercover Princes". BBC Three. 27 April 2011. Retrieved 4 April 2014. 
  38. ^ "I'm scared to return to India". Hindustan Times. 1 February 2008. Retrieved 5 April 2014. 
  39. ^ "Mumbai’s gay pride comes to fore". DNA India. 17 August 2008. Retrieved 5 April 2014. 
  40. ^ "High Court dismisses case against gay rally". Hindustan Times. 4 July 2008. Retrieved 20 January 2011. 
  41. ^ a b "Rainbow Chronicles". The Indian Express. 31 August 2009. Retrieved 5 April 2014. 
  42. ^ "Celina Jaitley at re-launch of pro-gay mag Bombay Dost". Bollywood Reloaded. 19 April 2009. Retrieved 20 January 2011. 
  43. ^ "Maiden rainbow pride walk". The Telegraph (India) (Bhubaneswar). 28 June 2009. Retrieved 20 January 2011. 
  44. ^ "Centre won't rush Sec 377 repeal, says Moily". Rediff. 28 June 2009. Retrieved 5 April 2014. 
  45. ^ "City prepares for gay pride march". The Times of India. 11 June 2009. Retrieved 5 April 2014. 
  46. ^ "Gay activists rejoice over Centre's plan, hold parades". The Times of India. 29 June 2009. Retrieved 5 April 2014. 
  47. ^ "Queer celebration at film festival in Mumbai". DNA India. 22 April 2010. Retrieved 6 April 2014. 
  48. ^ a b "LGBT film festival kick starts second edition in Mumbai". DNA India. 26 May 2011. Retrieved 6 April 2014. 
  49. ^ "Queer films from Pakistan, Iran head for Kashish". DNA India. 15 May 2013. Retrieved 6 April 2014. 
  50. ^ "InterPride 2013 Annual Report". InterPride. Retrieved 6 April 2014. 
  51. ^ Karthikeyan, D. (30 July 2012). "Madurai comes out of the closet". The Hindu (Madurai). Retrieved 6 April 2014. 
  52. ^ Mohua Das (16 July 2012). "Pride parade breaks record". The Telegraph (India) (Kolkata). Retrieved 6 April 2014. 
  53. ^ "First gay parade held in India's Gujarat state". The Telegraph (UK) (London). 7 October 2013. Retrieved 5 April 2014. 

References[edit]

Further reading[edit]

  • Merchant, Hoshang (1999). Yaraana: Gay Writing from India. New Delhi: Penguin. ISBN 0-14-027839-7.  (First edition)
  • Thadani, Giti (1996). Sakhiyani: Lesbian Desire in Ancient and Modern India. London: Cassell. ISBN 0-304-33451-0. 
  • Vanita, Ruth (2005). Love's Rite: Same-Sex Marriage in India and the West. New York: Palgrave Macmillan. ISBN 1-4039-7038-6. 
  • Joseph, Sherry (2005). Social Work Practice and Men Who Have Sex With Men. Thousand Oaks: SAGE Publications. ISBN 0-7619-3352-2. 
  • Nanda, Serena (1998). Neither Man Nor Woman: The Hijras of India. USA: Wadsworth Publishing. ISBN 0-534-50903-7.  (Second edition)
  • Shahani, Parmesh (2008). GayBombay: Globalization Love and Belonging in Contemporary India. USA, India: SAGE. 

External links[edit]