The name of Dominic D’souza, a resident of a one-horse town Parra in north Goa, might not ring a bell for many; however, a look at the history of gay rights movement in India will indicate his contribution to the movement. The 29-year-old was having breakfast with his mother when he was unceremoniously arrested from his house on a fateful day in 1989. His crime—homosexuality.
Without being told his crime, he was whisked away to a police station and badgered with questions about his personal and sex life. It was only when he was shown his file, which had ‘AIDS’ written next to his name, that he realized that he was HIV+. He was kept in an isolated enclosure, referred to as the tuberculosis sanatorium, as per the Goa government’s archaic Goa Public Health (Amendment) Act, which classified HIV+ or AIDS, which sought isolation and deportation of patients infected with the immune-deficiency diseases.
Forced into early retirement from his job at the World Wildlife Fund, D’Souza succumbed to his illness 1992, while battling the injustice done to him by the state government. He might be no more but his struggles have left a stark reminder of how homosexuality is perceived in the country.
The Merriam Webster online dictionary defines homosexuality as: Sexual attraction or the tendency to direct sexual desire toward another of the same sex. A reality check would tell you the definition is not as simple in India. Ideally, the sexual attraction or romantic feelings that a person experiences for a person of the same sex is homosexuality. It could be either mutual or one-sided and sexual orientation, per se, is a matter of personal choice. Rights of gays, lesbians, and transgenders have been considered a taboo subject both by the Indian society and the government. With no legal standing, homosexuals in India lack a stringent legal framework that safeguards their basic rights. Established in the 1860s, Section 377 criminalizes consensual sex between two adults of the same gender.
The only saving grace that lesbian women do not come under the ambit of Section 377 as it criminalizes only “penile, non-vaginal sex”.
Though same-sex intercourse was decriminalized in 2009 by the Delhi high court, the same order was set aside by the Supreme Court in 2013. In the Naz Foundation vs Govt of National Capital Territory of Delhi case, non-governmental organization which works for rights of sexual minorities filed a petition on the issue that Section 377 did not violate fundamental rights of homosexuals in India and encouraged pedophilia and sexual abuse.
The bench of judges of Delhi high court agreed that the statute violated Articles 14, 15 and 21, which guarantees equality before the law.
The order was challenged in the Supreme Court, and in the Suresh Kumar Kaushal vs Naz Foundation case the apex court accepted the appellants’ arguments and upheld that Section 377 criminalize sexual assault and pedophilia. The Supreme Court also maintained that the law was a pre-constitutional statute and had the architects of Indian Constitution would not have made it a fundamental right if it was a violation in the first place.
The stigma attached to homosexuality dates back to ancient Indian literature. In Arthashastra, Kautilya writes about a plethora of non-vaginal sexual practices, which when performed by either of the genders, was to be punished with a fine. Even Manusmriti, does mention homosexuality as a characteristic that needs to be regulated. However, these provisions are not homophobic in nature as they focus more on the one losing his/her virginity, which was associated with a loss of dignity in ancient Indian culture (Trehan, 2011).
Many legal experts feel that decriminalizing homosexuality in India is a concept, whose time has come. Internationally, countries like Canada have attracted global adulation for maintaining a liberal attitude towards lesbian and gays and legalizing same-sex marriages. Indian-origin born lawyer Leo Varadkar, who was recently sworn in as the prime minister of Ireland, is openly gay.
Moreover, experts argue that decriminalizing homosexuality doesn’t violate Article 14 of the Indian Constitution. The statute bats for equality before the law so that there is no discrimination against any person on the basis of caste, creed, religion or gender. The very fact that there is a distinction between homosexuals and heterosexuals. Secondly, the recent Supreme Court judgment entitles the right to privacy, which also includes sexual orientation.
Lesbians and gays have to face a lot of social atrocities that also include rape and sexual assault. Living in a country that denies their existence, they also have trouble getting houses on rent or employment.
The above arguments amply stress on the need of this largely marginalized section of the society to a life of dignity. Marriage comprises the mental, psychological and physical union of two persons and every individual should get a chance to lead a life the way they want to live.