SEXUAL ORIENTATION: A WALK THROUGH

THIS ARTICLE WAS WRITTEN BY MANASVITA TEJSI, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

INTRODUCTION

Our culture has always just accepted union or marriage between a man and a woman. It has never strayed from traditional approaches. Pride month celebrates the LGBTQIA+ community. Sexual orientation is someone’s sexual or romantic identity. In layman’s terms, their preference in their partners is their sexual orientation. It is a broad spectrum which goes above and beyond. There are various orientations which have come to light in recent years. The broad-spectrum ranges from Heterosexuality to Asexual. There are numerous other orientations in between. Communities often have difficulties in accepting that there might be other unions or attachments formed than just heterosexuality. This brings about hate and dislike towards the LGBTQIA+ community from traditional thinking member of the society who have been brought up in a traditional way since childhood; the term commonly used to denote this dislike towards the community is homophobia.

THE JOURNEY OF SECTION 377

Section 377, before being scrapped off, stated—“Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”[1] The interpretation of this section would be that same sex intercourse is a crime.

The nation saw Section 377 being decriminalized for the first time in the Naz Foundation case[2]. The Delhi High Court, in 2009, gave a landmark judgement and made Section 377, not an offence. In Suresh Kumar Koushal and Another v NAZ foundation and Others[3], the Supreme Court overruled the judgement of the high court and it was held that homosexual intercourse is an unnatural offence. In 2018, in a landmark case, the five-judge bench overruled the judgement of the Supreme Court and Section 377 was finally decriminalized. In the same judgement, Navtej Singh Johar v Union of India[4], it was held that in Article 15(1) of the Indian Constitution states—” The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”[5] The Supreme court said that Article 15 includes ‘sex’ and sexual orientation can be interpreted as an unwritten clause under ‘sex’. This helped in many people coming out to their families and accepting their orientation.

In India this has been a taboo; there are many cases of non-acceptance from the families but also some cases of embracing their child’s sexual orientation. In 21^st century if people cannot accept the fact that every person is different, this would be a huge defeat for people and a win for archaic traditional customs.

There were some other cases which helped in small causes towards decriminalizing Section 377; the NALSA[6] case recognized transgender as the third gender; in the K.S. Puttaswamy case[7], right to privacy was made a fundamental right and the court observed that LGBTQIA+ have the right to privacy and there should not be any discrimination in that. But these cases did not touch upon the sodomy law issue. The only downside of decriminalizing this law was that all the male rape cases were charged under this act and now that this act has been stricken off, the need for Section 375 to be gender neutral has risen.

LEGALIZING GAY MARRIAGE

Although the Supreme Court decriminalized same sex intercourse, it stayed silent on the issue of legalizing gay marriage. Denmark became the first country to legalize same sex union by the Registered Partnerships Act, 1989; however, they could not be married or adopt a child. This caused a huge barricade between same sex marriage and legalization of the same. The first country to legalize same sex marriage was Netherlands in 2001. There was no discrimination between a heterosexual and a homosexual marriage. And United States in a landmark judgement in 2015, legalized same sex marriages.

Around the globe, 20 countries have legalized same sex marriages. It is rather shameful that people think same sex marriages are considered not normal or out of the ordinary; normalization of homosexuality is necessary. There are 197 countries in the world and only 10% of the world has legalized same sex marriage. People argue that same sex couples cannot have children and this can cause problems. This argument is blatantly ignoring the fact that same sex marriage will be given all the rights as a heterosexual marriage which give the right to adopt. Couples can always adopt a child; this will also help in finding all those abandoned or orphaned children a home. This is an indirect way of saying unless you can reproduce a child biologically, it does not count. This gives rise to differences and bigotry.

CONCLUSION

Being from a country where tradition and modernity do not make a good amalgamation, can be difficult on the citizens of the nation. This does not help in furtherance of the nation in itself and its people. Most people often adopt a mob mentality in these circumstances; they think the mindset of the majority is correct. This blocks the mind to opening up to any new possibilities. This can be the reason why most parents have trouble accepting the fact that their child might not be heterosexual. The society has shamed instead or normalizing homosexuality which is a huge step back for the country. This makes people think twice before expressing themselves in a way that may be frowned upon. Simply decriminalizing Section 377 can do nothing; it is the prerogative of the LGBTQIA+ community. Legalizing gay marriage would be a huge step towards accepting the fact that everyone is different and has the right to live their life on their own terms. In the words of Harvey Milk, “It takes no compromise to give people their rights. It takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.”

[1] Indian Penal Code, 1860, S. 377

[2] Naz Foundation v Government of NCT Delhi and Others, (2009) 160 DLT 277

[3] Suresh Kumar Koushal and Another v NAZ foundation and Others, (2014) 1 S.C.C 1

[4] Navtej Singh Johar v Union of India, A.I.R 2018 S.C. 4321

[5] INDIA CONST. art. 15, cl. 1.

[6] National Legal Services Authority (NALSA) v Union of India, A.I.R. 2014 S.C. 1863

[7] Justice K.S. Puttaswamy (Retd.) v Union of India, (2017) 10 S.C.C. 1