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[4][5][6] and by Bollywood.[7] Several organisations, including the Naz Foundation (India) Trust, the National AIDS Control Organisation,[8] Law Commission of India,[9] Union Health Ministry,[10] National Human Rights Commission[11] and The Planning Commission of India[12] 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.[13] Lacking support from family, society or police many gay rape victims stay silent.[14]

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),[15] which some scholars believe recognizees homosexual/transsexual dimensions of human life, like all forms of universal diversities.[16] Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history, and that homosexuals were[when?] not necessarily considered inferior in any way.[17]

History[edit]

Legal status[edit]

Section 377 of the Indian Penal Code (IPC) dating back to 1861[18] makes homosexual sex punishable by law.

Support for decriminalization[edit]

In September 2006, Nobel Laureate Amartya Sen and acclaimed writer Vikram Seth and other prominent Indians publicly demanded the repeal of section 377 of the IPC.[19] 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 the Prime Minister Manmohan Singh called for greater tolerance towards homosexuals.[20] On 23 July 2008, Bombay High Court Judge Bilal Nazki said that India's unnatural sex law should be reviewed.[21] The Law Commission of India had historically favoured the retention of this section, but in its 172nd report, delivered in 2000 it recommended its repeal.[citation needed]

On 9 August 2008, then health minister, Anbumani Ramadoss campaigned 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."[22] His ministerial portfolio had put him at odds with the Indian Home ministry in seeking to scrap Section 377.[10] 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 for "abetting," while making this a cognizable and non-bailable offence.

The United Nations 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, said "countries protecting homosexuals from discrimination had better records of protecting them from getting infected by the diseases. [But] unfortunately in India, the rates of new infections among men who have sex with men continue to go up. Until we acknowledge these behaviours and work with people involved with these behaviours, we are not going to halt and reverse the HIV epidemic. Countries which protect men who have sex with men have double the rate of coverage of HIV prevention services — as much as 60%."[23] In talking to The Hindu, he added that "The United Progressive Alliance government here is in a difficult position as far as amending Section 377 of the Indian Penal Code is concerned because of the coming elections as any changes could be misrepresented. We need to change the laws, sensitise the police and judiciary....But when discriminatory laws have been removed, marginalised people have got access to treatment and prevention facilities like condoms." Warning of the urgency he said, "India has achieved success in checking the spread of this dreaded disease through commercial sex workers but transmission through gay sex, and injectable-drug users is still an area of concern. Injectable-drug use can also be controlled through targeted interventions but is difficult to control or change people’s sexual orientation."[24]

Court proceedings[edit]

In December 2002 Naz India filed a Public Interest Litigation (PIL) to challenge IPC section 377 in the Delhi High Court.[25] 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.[26]

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 S. 377 completely – it held the section was valid to the extent it related to non-consensual non-vaginal intercourse or to intercourse with minors – and it expressed the hope that Parliament would soon legislatively address the issue.[27]

On 11 December 2013, on appeal, 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."[28]

The full decision can be found here.

On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC.[29]

Religious Opposition[edit]

The 11 December 2013 judgement of the Supreme Court, upholding Section 377, was met with support from religious leaders. 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 praying that journalists not "turn homosexual", stated he could cure homosexuality through yoga and called it "a bad addiction".

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."[30] (Traditionally, Indian culture, or at least Hinduism, has been more ambivalent about homosexuality than Singhal suggests.)

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 verison 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[31] Rabbi Ezekiel Isaac Malekar, honorary secretary of the Judah Hyam Synagogue, in upholding the judgment, 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."[30]

Coming out 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,[32] and on BBC Three's Undercover Princes.[33] 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".[34]

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 also joining in the festivities.[35] 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.[26]

Days after the 2 July 2009 Delhi High Court verdict legalizing homosexuality, Pink Pages, India's first online LGBT magazine was released.[36] On 16 April 2009, India's first gay magazine Bombay Dost, was re-launched by Celina Jaitley in Mumbai.[37]

On 27 June 2009, Bhubaneswar, the capital city of the Odisha, saw its first gay pride parade.[38] The same day, 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. 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.[39] Attendance at the pride parades has been increasing significantly since 2008, with an estimated participation of 13,500 people in Delhi and 1,500 people in Bangalore in 2010, and a similar attendance of over 3,000 in Mumbai in 2011.

Mumbai has one of its biggest pride events - Kashish Mumbai Queer Film Festival which was first held in 2010 in April and the next year from May 25–29, 2011. It is the first queer film festival that is held in a mainstream multiplex theater and screens LGBT films from all over the world. It has been recognized by Interpride as a pride event in India.

Madurai celebrated city's first LGBTQ Rainbow festival on 29-07-2012, Anjali Gopalan inaugurated Alan Turing Rainbow festival and flag offed 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,this is the first parade in Asia to highlight 20 other kinds of genders apart from LGBT.[40] Kolkata Rainbow Pride festival held on 15 July 2012 was attended by more than 1500 people and many online forums like www.Jubwetalk.in, Desiboys, Velvet were present to support the cause.First Gujarat state LGBT pride parade in Surat was held on October 6, 2013.[41]

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. ^ Homophobia persists in India despite court reforms, Daily Telegraph, Rahul Bedi, New Delhi
  3. ^ Fear and loathing in gay India
  4. ^ UN body slams India on rights of gays The Times of India, 24 April 2008
  5. ^ "Fear and loathing in gay India". BBC News. 17 May 2005. Retrieved 17 April 2008. 
  6. ^ Why should homosexuality be a crime? The Times of India, 18 September 2003
  7. ^ "Queering Bollywood". 
  8. ^ "NACO is rendered impotent due to archaic anti-sodomy laws". 
  9. ^ "A perspective from India: Homosexuality stands criminalised because of a mid 19th century colonial law". 
  10. ^ a b Kounteya Sinha (1 October 2008). "Ramadoss to take up gay rights issue with PM". The Times of India. Retrieved 20 January 2011. 
  11. ^ "Gay rights should be respected, prostitution legalised: NHRC chief". The Times of India. 6 October 2008. Retrieved 12 February 2009. [dead link]
  12. ^ "The silence around sex work". 
  13. ^ http://www.dnaindia.com/delhi/report-violence-against-lgbt-groups-still-prevails-in-india-1924112
  14. ^ http://articles.timesofindia.indiatimes.com/2013-02-16/chennai/37132653_1_gay-man-drunk-men-straight-men
  15. ^ 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. 
  16. ^ Ashok Row Kavi. "Expose the Hindu Taliban!". Rediff.com. Retrieved 4 Jan 2014. 
  17. ^ Vanita & Kidwai 2001, pp. xxiii–xxiv
  18. ^ http://www.nytimes.com/2013/12/12/world/asia/court-restores-indias-ban-on-gay-sex.html
  19. ^ Ramesh, Randeep (18 September 2006). "'India's Literary Elite Call for Anti-Gay Law to be Scrapped'". The Guardian (London). Retrieved 4 May 2010. 
  20. ^ "Reverse swing: It may be an open affair for gays, lesbians". The Times Of India. 2 July 2008. 
  21. ^ Shibu Thomas (25 July 2008). "Unnatural-sex law needs relook: Bombay HC". The Times of India. Retrieved 12 February 2009. 
  22. ^ Kounteya Sinha, TNN, 9 Aug 2008, 12.11 am IST (9 August 2008). "Legalise homosexuality: Ramadoss". The Times of India. Retrieved 20 January 2011. 
  23. ^ http://www.macaudailytimesnews.com/index.php?option=com_content&task=view&id=18780&Itemid=32
  24. ^ "India going through social change: UN official". The Hindu (Chennai, India). 9 November 2008. 
  25. ^ "Advocacy, Section 377". 
  26. ^ a b "High Court dismisses case against gay rally". Hindustan Times. 4 July 2008. Retrieved 20 January 2011. 
  27. ^ Yuvraj Joshi (21 July 2009). "A New Law for India's Sexual Minorities". The Guardian (UK). Retrieved 12 December 2010. 
  28. ^ http://www.firstpost.com/living/live-govt-to-legislate-against-criminalising-homosexuality-1280861.html
  29. ^ "Supreme Court refuses overruling its Verdict on Section 377 and Homosexuality". IANS. Biharprabha News. Retrieved 28 January 2014. 
  30. ^ a b http://www.dnaindia.com/india/report-rare-unity-religious-leaders-come-out-in-support-of-section-377-1933612
  31. ^ http://www.masortiworld.org/molami/kehilla/ind4
  32. ^ "India's gay prince appears on Oprah show". 
  33. ^ "Undercover Princes". 
  34. ^ I'm scared to return to India, Hindustan Times, 1 February 2008
  35. ^ "Mumbai’s gay pride comes to fore". 
  36. ^ Rainbow Chronicles, Indian Express, 1 February 2008
  37. ^ Post To: (19 April 2009). "Celina Jaitley at re-launch of pro-gay mag Bombay Dost". Bollywood Reloaded. Retrieved 20 January 2011. 
  38. ^ "Maiden rainbow pride walk". The Telegraph. Kolkota, India. 28 June 2009. Retrieved 20 January 2011. 
  39. ^ [1][dead link]
  40. ^ "Cities / Madurai : Madurai comes out of the closet". The Hindu. 2012-07-30. Retrieved 2012-10-10. 
  41. ^ http://www.telegraph.co.uk/news/worldnews/asia/india/10360598/First-gay-parade-held-in-Indias-Gujarat-state.html

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