“Discrimination is antithesis of equality….It is the recognition of equality which will foster dignity of every individual,” reads the Delhi High Court judgment, a 105-page decision that is the first in India to directly guarantee rights for homosexuals.
The historic decision by Delhi High Court on 1 July 2009 states that homosexual sex between consenting adults is not a criminal act, overturning a 149-year-old British colonial law, which described sex between members of the same gender as an "unnatural offence". The ruling applies only to India’s capital, but it seems it will force the Central Government to either appeal the decision to the Supreme Court or repeal the law nationwide.
Significantly toning down the Section 377 of the Indian Penal Code this week, the Delhi High Court ruled that the law outlawing homosexual acts was discriminatory and a "violation of fundamental rights". This brings the total number of countries that criminalise homosexuality down to 84. The punishment for homosexuality varies in countries from imprisonment, fines, public humiliation and even death penalty.
Several organisations including the Naz Foundation, National AIDS Control Organisation, and many NGOs working for the rights of homosexuals have come out in support of decriminalising homosexuality in India and pushed for tolerance and social equality for lesbians, gays, bisexuals, and transgendered people. It is hoped that the ruling will help not only in giving equal rights to the homosexuals but also help in preventing HIV. Homosexuals will now be able to visit doctors in the National capital freely and talk about their health and psychological problems.
In fact, going beyond decriminalising homosexuality, the Delhi High Court has widened the ambit of Article 15 of the Constitution of India, which prohibits discrimination on grounds of sex, religion and caste. It has expanded the term sex to include sexual orientation, which means a person cannot be discriminated against on grounds of sexual preference. However, the High Court stated that Section 377 of the Indian Penal Code (IPC) will continue for non-consensual and non-vaginal sex involving minors.
But the question remains that even after this landmark decision, will the social stigma against homosexuals diminish? Sexual acts between consenting adult males have long been the target of considerable social and legal condemnation in the Indian society. Acceptance can only come if the society becomes more permissive.
Myths regarding decriminalisation of homosexuality
The debate over homosexuality has been bogged down by far too many myths and misconceptions, which must be corrected and clarified if India is to make progress on this critical issue. Some of the myths are listed below:
1. It will lead to decrease in the number of marriages and this, in turn, will undermine the whole institution of the family.
- Scientific studies have proved that sexual orientation is due to genetic factors, and is determined by the age five or six years. Therefore, it is unlikely that an increase in the incidence of homosexuality will occur as a consequence of its decriminalisation. In fact, decriminalisation works towards removing the stigma associated with homosexuality and may have positive repercussions on relationships between homosexuals and their families. It may thus promote acceptance of homosexuals by their families, which will help strengthening the family ties.
2. Decriminalisation will lead to an increase in homosexual activity and sexually transmissible diseases.
-Laws regulating and/or penalising homosexual activity impede public health programs promoting safer sex to prevent HIV transmission by driving underground many people at risk of infection.
The criminal status of homosexual acts deters gay men from going to doctors, hospitals and other health services for testing, advice and treatment, as they believe they may be exposing themselves to the risk of prosecution if they do so.
The key to the prevention of HIV/AIDS is not criminalising homosexuality, but education of the groups, which are likely to be the most affected. Effective strategies for AIDS prevention and minimal transmission can only occur if there is a free flow of information between doctors and their target groups. As long as the anti-homosexual laws remain on the books, this will not be possible. Legislation against homosexuality hampers access to health education and services.
3. Homosexuality is an influence from the West
Some groups claim that homosexuality is non-India, and that gay sex is unnatural and a form of sexual perversion imported to India from the West. But the question is how does one determine what is Indian and what is not? Who determines what natural or unnatural sex is? What makes a consensual same-sex relationship a taboo and consensual sex among heterosexuals a tradition? The Indian mythology is replete with stories of people indulging in homosexuality.
4. Homosexuality is an illness or sexual perversion
Homosexuality is one of the three main categories of sexual orientation, along with bisexuality and heterosexuality. As an orientation, homosexuality refers to an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions primarily to people of the same sex, whereas, sexual perversion is non-consensual unnatural sex. Also, homosexuality is not a disease or an illness to be treated. It’s a sexual orientation just like heterosexuality.
What after decriminalisation of homosexuality?
Though the Delhi High Court's decision marks respect for human rights irrespective of one's sexuality and sexual orientation, a lot many things need to be done at the ground level. These include:
1. Ending employment discrimination against homosexuals
Homosexuals have been subject to discriminatory employment practices such as bias in hiring, promotion, job assignment, termination, and compensation, and various types of harassment. This needs to be stopped to make sure equality prevails everywhere.
2. Putting an end to hate crimes
Hate crimes, also know as bias crimes are the crimes motivated by bias against an identifiable social group, usually groups defined by race, religion, sexual orientation, disability, ethnicity, nationality, age, gender, gender identity, or political affiliation. It is important motivated violence or intimidation against homosexuals is put to an end.
3. Creating awareness
This is the most important step for eradicating discrimination against homosexuals. People should be made to know that sexual orientation is the result of a complex interaction of environmental, cognitive and biological factors. In most people, sexual orientation is shaped at an early age. There is also considerable recent evidence to suggest that biology, including genetic or inborn hormonal factors, play a significant role in a person's sexuality. It's also important to recognise that there are probably many reasons for a person's sexual orientation, and the reasons may be different for different. So, homosexuality is not something unnatural or undesirable. It is as natural as heterosexuality and thus, must be given the same status and respect.
