Authored by Trishla Garg, a 1st-year student at Vivekanand Institute of Professional Studies.
“Love him and let him love you. Do you think anything else under heaven matters?” – James Baldwin.
This blog revolves around homosexuality, its related aspects and the way society takes the idea of homosexuality. It talks talks about homosexuality which is a natural attraction towards the same sex. It elaborates on the taboo which has been created by societies in the past and how over a prolonged period LGBTQ rights have gained momentum. This article covers the landmark judgments which helped to educate society about the concept of homosexuality. This article throws light on section 377 of the Indian Penal Code which refers to the penalizing of all the criminal activities which are seen out of nature.
All about Homosexuality
Science has given its consensus about homosexuality, where it mentions that one person’s attraction towards the same sex or gender is natural. They are not forced or convinced by anyone but their feelings are based on instincts. They are based on people’s inbred. However, the concept of this immutable sex has not been accepted and understood by our past generations. This lack of clarity has led to the annihilation among the youth and this is causing self-doubt among themselves. Hence, it is considered an anathema to discuss it between parents and children. Consequently, due to the LGBTQ rights being suppressed by the society such people feel distressed and have emotional breakdowns. Many families disown their kids because of this reason and they suffer from severe mental and emotional issues. The families are afraid of what would people think about their kids being gay, lesbian, or bisexual. They are looked down upon by society.[i]
How was LGBTQ Quoted?
The term LGBTQ was first brought up by St. Peter Damian to explain the word “Sodomy” [ii] which is a short term for “Sin of Sodom” alluding to the Genesis account of the men who tried to have intercourse with two angels and were infatuated with blindness. This was given in the year 1050. This was overruled by the famous scholar William Blacksmith. He had a very obnoxious approach to sodomy. He had developed anti-sodomy laws for his ideas and had made a great influence over the British colonies. Consequently, it gave rise to section 377 of the Indian Penal Code, which was started by Lord Macaulay and was perceived as the most conservative belief in the country.
Homosexuality vis-á-vis Constitutional Law
The very famous case of the Naz Foundation [iii], which stood against section 377 of the Indian Penal Code, is a non-governmental organization, working for the prevention of AIDS and upliftment of the bisexual minorities. The fight for the amendment of this section was started in the year 2001. Further, the Delhi High Court struck down section 377, which legalized the harmonious sexual acts of the adults in private elaborating that it violated the fundamental right of life and liberty and the right to equality as mentioned in articles 21 and 14 of the Indian Constitution. It was also violating article 15(1) of the Indian Constitution which stated that no one can be discriminated against on the grounds of sex and gender. Also, the Naz Foundation claimed that the fundamental rights under article 19 were being violated as the LGBTQ community couldn’t move freely as per their will. Then, on 6th September 2018, in the famous case of Navtej Singh Johar vs. Union of India [iv], the five-judge bench led by CJI Dipak Misra sullied section 377 of the Indian Penal code. This was done to accept the bisexual nature of the people in the books of law and to give them a status in the social world. The law stands for the protection of minorities and animals from sexual offenses. The law defines that law stands in protecting the minorities and animals from sexual offenses. Thereby, section 377 cites the unnatural offence and those violating the same will be penalized with imprisonment for life or may extend for at least 10 years which may extend up to life imprisonment. Hence, section 377 makes it clear that both heterosexual and homosexual acts will be considered criminal, if they are against the nature of the law. Following this judgment, it was said that there should be equality for all and the State shall follow constitutional morality.
Politics About Homosexuality
Everyone seems keen to know the biological answers about homosexuality and why does it happen. History also says the Nazi government wanted to know about it as well and find a solution. They were invested to know about it but they couldn’t get any answers. In previous years, it has been stated that it could be because of the genes or the brain cells acting differently. Even in 1993, a major search was made in terms of genes, and Dean Hamer mentioned that the differentiation could be because of the X chromosome developing the same-sex orientation in men. Consequently, because of these studies, the belief of the gay community became stronger and was assured that the gay community link must exist. The book authored by Michel Foucault “The History of Sexuality Desires” enlightened the thoughts related to sexual desires. It was first said in that book that sexual desires are the ones that are in us and have the desire to find the truth. Sexual desires help us to know our sexual identities. It has been seen as a political and social issue that has been used as a medium to suppress the LGBTQ community for being different.
The Special Marriage Act, 1954
The Act states that all the people of India and outside countrymen can marry anyone irrespective of their caste, creed, sex, and religion. However, no such acts have been there for the same-sex but eventually, the apex court has to deal with it. Although several petitions have been filed for it in the apex court, still the situation has not changed. Marriage is important because it’s made by the bond of love and promises. Thereby, the community should keep up their hopes for the same and should keep trying.[v]
By analyzing the whole situation, we get to know that society should support the LGBTQ community and should not be the reason for people going through emotional and mental breakdowns. Society should be liberal enough to acknowledge and respect the choices of the people who are born different. People should be the best versions of themselves and should keep their morals right. They should be seen as everyone else, and not as some alien creatures of society.
[i] Keni, Times of India, ‘Being Homosexual or Bisexual is normal, it’s time for society to accept natural.', 31 May 2021
[iv] Navtej Singh Johar vs. Union of India, (2018) SC 4321