Homosexual Historical and religious background

INTRODUCTION
Homosexual is a person erratically attracted to members of his or her own sex and with whom he usually (but not always) has perverted sexual contact. Homosexuality is sometimes known by other names including, sodomy, pederasty and crimes against nature.. the offence is termed lesbian love or lesbianism. It is generally practiced by women who suffer from mental degeneration and have antipathy towards the opposite sex..... It is because of the propagation of such views that the society has taken a stringent and rigid attitude against homosexuality. Since such views are prevalent against homosexuality itself, acceptance of the union of same sex couples will necessarily take a longer time. he first step towards understanding is to see homosexuality in an unbiased light and then to perceive interlinked arenas such as recognition of gay marriages or their rights to adopt and other connected rights.

Historical and religious background

Homosexual behaviour occurs in every culture, even in those where it is most heavily denied. In ancient Indian literature, homosexuality has been documented in various treatises by different authors. Hindu legends abound with references to homosexuality! and archaeologists have found prehistoric cave drawings depicting homosexual acts. "ccording to the Hindu sage #atsayana, author of the renowned treatise on love, the $amasutra, homosexual practice is allowed by the holy writ (%harmasutras) with &ust a few exceptions. Indeed, the $amasutra devotes an entire chapter to "uparistaka '' homosexual intercourse. he reference in the (amayana to Sri (ama as purusamohana (upaya '' so handsome as to be pleasing even to men '' indirectly suggests that homosexuality would have been considered, at least in certain )uarters, a legitimate behaviour. In the popular tradition of Hinduism, sexual prowess is considered helpful in unleashing spiritual energy to attain liberation. *oth Siva and $rishna are said to have engaged in homosexual activities. "lthough these practices are referred to in the traditional Hindu literature and religious mythology, the general attitude towards homosexuality has tended to be disapproval. "s editor of the &ournal +oung India, ,ahatma -andhi wrote in ./0/ about the 1unnatural vice1 in boys2 school. ,ale homosexuality in ,uslim culture existed during the ,ughal period in India. 3nder the ,uslim rulers homosexuality entered court life. In Islamic Sufi literature homosexual eroticism was used as a metaphorical expression of the spiritual relationship between -od and man, and much 4ersian poetry and fiction used homosexual relationships as examples of moral love. "lthough the 5uran and early religious writings display mildly negative attitudes towards homosexuality, ,uslim cultures seemed to treat homosexuality with indifference, if not admiration. "s for the vast ma&ority of the 6hristians in India, the very word 1homosexuality1 seems to arouse more revulsion than almost any other word. 7argely based on the commonly accepted

interpretation of biblical passages such as -enesis ./8.'.9 and (omans .80:, these reactions are often accompanied by ignorance. ;evertheless, it should be noted that the attitude of some 6hristians towards this area of sexuality is changing from blanket condemnation of all such actions to genuinely sympathetic concern for persons who find themselves in very difficult circumstances. <or example. =. (ussell 6handran concludes his brief discussion of homosexuality in a recent book with these words8 1Instead of adopting a &udgmentary attitude towards homosexuals, we need sympathetic understanding of the persons who are known to be homosexuals

Decriminalisation of homosexuality
Section >:: of the Indian 4enal 6ode reads8 ?f 3nnatural ?ffences. @hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Axplanation8 penetration is sufficient to constitute carnal intercourse necessary of the offence prescribed in the section. he *ritish left us redundant and ridiculous piece of legislation .9B years ago. hen it was perceived that a homosexual person had only CanalD intercourse and this propagated the narrow'minded view that sodomy and homosexuality was one and the same. In recent times however, *ritain has done away with this legislation, though we in our 6ountry continue to hold fast onto such obsolete and dangerous perceptions. he conse)uence being that homosexuality is criminaliEed solely due to the manner of the intercourse. his indicates that no thought has been given to the emotional attachment, affection and bond between two people though they might be of the same sex. he Section poses before us certain interesting )uestions like what is CnaturalD and what the Corder of natureD is all aboutF Section >:: does not define either of the above terms and has left it to the discretion of the courts, leading to a lot of controversy. <urther, this section does not differentiate between consensual and coercive sex.

Naz oundation !" #o!ernment of NCT of Delhi and Others $%&C' No"()**+,--. acts
his case concerned a writ petition (a public interest action taken before the court) brought by an Indian ;-? working with HI#G"I%S sufferers which argued that Section >:: of the Indian 4enal 6ode was unconstitutional. Section >:: entitled H?f 3nnatural ?ffencesI has effectively been interpreted as criminalising consensual sexual acts between persons of the same sex. Section >:: states8 H@hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with Jimprisonment for lifeK, or with imprisonment of either

description for term which may extend to ten years, and shall also be liable to fine.I he ;aE <oundation and others submitted that this interpretation of Section >:: violated the fundamental rights guaranteed under "rticles .9, .B, ./ and 0. of the 6onstitution of India. he <oundation brought the action in the public interest on the grounds that itDs work on combating the spread of HI#G"I%S was being hampered by discrimination against the gay community. his discrimination, the petitioners submitted, resulted in the denial of fundamental human rights, abuse, harassment and assault by public authorities, thus driving the gay community underground and sub&ecting them to greater vulnerability in violation of their fundamental rights.

/egal 0rguments 1ut forth by the %etitioner

he petitioner, the ;aE <oundation, submitted that the harassment and discrimination of the gay and transgender community in India resulting from the continued existence of Section >:: of the Indian 4enal 6ode JI46K affected the rights of that community guaranteed under the 6onstitution, including the right to e)uality, the right to non'discrimination, the right to privacy, the right to life and liberty, and the right to health. hey argued that the 6onstitution protects the right to privacy (which is not expressly mentioned) under the right to life and liberty enshrined in "rticle 0.. <urthermore, they submitted that the right to non'discrimination on the grounds of sex in "rticle .B should not be read restrictively but should include Csexual orientationD. hey also contended that the criminalisation of homosexual activity by Section >:: discriminated on the grounds of sexual orientation and is therefore contrary to the 6onstitutional guarantee to non'discrimination under "rticle .B. <inally, the petitioner put forward that courts in other &urisdictions have struck down comparable provisions relating to sexual orientation on the grounds that they violate the rights to privacy, dignity and e)uality.

/egal 0rguments 1ut forth by the Res1ondents

wo -overnment departments responded to the petition, however, as stated by the High 6ourt, they presented Ccompletely contradictory affidavitsD (submissions). ,inistry of Home "ffairs (,H") he ,H" argued in favour of the retention of Section >:: on several grounds. <irst, that it

provided for the prosecution of individuals for the sexual abuse of children. Second, that it filled a gap in the rape laws. hird, that if removed it would provide for Cflood gates of delin)uent behaviourD which would not be in the public interest. <inally ,H" submitted, that Indian society does not morally condone such behaviour and law should reflect societal values such as these. ?n behalf of ,H", the "dditional Solicitor -eneral submitted, in response to claims of a right to privacy, that such a right is not absolute and can be restricted where there is a compelling state interest in doing so, such as public decency and morality. <urthermore, he argued that Section >:: does not discriminate on the grounds of sex because it is gender neutral. Interveners ;ational "ids 6ontrol ?rganisation (;"6?) and the ,inistry of Health and <amily @elfare ;"6? responded on behalf of the ,inistry of Health and presented evidence in support of the petitionerDs submission that the continued existence of Section >:: is counter'productive to the efforts of HI#G"I%S prevention and treatment. ;"6? argued for the removal of the section stating that it makes a large number of people in high risk categories in relation to HI#G"I%S reluctant to come forward due to a fear of law enforcement agencies, and that in driving homosexuality underground it increases risky behaviour such as unprotected sex. C#oices against Section >:: I46D " coalition of .0 ;-?s submitted evidence also in support of the petitionerDs arguments which demonstrate the high number of violations of human rights suffered by the 7-* community inIndia as a conse)uence of Section >::.

Decision
he High 6ourt (6ourt) firstly reiterated the test for any law which interferes in personal liberty, as set out in ,aneka -andhi v. 3nion of India J.K 8 that (i) there must be a procedure! (ii) that procedure must be tested against one or more of the fundamental rights conferred under "rticle ./ which are applicable! and (iii) it is also susceptible to be tested against "rticle .9, and must be right, &ust, fair and not arbitrary. (ight to 4rivacy he 6ourt noted that the Indian 6onstitution does not contain an explicit provision in relation to the right to privacy, however the Supreme 6ourt has interpreted such a right on the basis of

"rticle ./ protecting freedom of expression and movement, and "rticle 0. protecting the right to life and liberty. he 6ourt made extensive reference to 3nited States &urisprudence on the right to privacy as read into the 6onstitution, including (oe v. @ade J0K and 4lanned 4arenthood of South'eastern 4a v. 6asey J>K .It then went on to consider the development of this right in India including the case of $harak Singh v. he State of 3.4. J9K , which traced the right to privacy in India to the right to ClifeD in "rticle 0. of the 6onstitution. In addition, the 6ourt referred to specific rights of persons of different sexual orientation in this respect by reference to the +ogyakarta 4rinciples on the "pplication of Human (ights 7aw in (elation to Sexual ?rientation and -ender Identity, which the 6ourt noted asserts the rights to e)ual en&oyment of rights of all persons regardless of their sexual orientation. aking stock of these provisions, the 6ourt concluded that Section >:: denies the dignity of such individuals, criminalises their identity and violates their right to privacy which is protected within the ambit of "rticle 0. of the 6onstitution. In making this finding the 6ourt dismissed the arguments of the ,H" that the decriminalisation of sodomy will lead to the increase of HI#G"I%S on the basis that there was no medical evidence to support this contention. he 6ourt also noted that this claim contradicted the arguments made by ;"6? and the ,inistry of Health and <amily @elfare. @ith respect to the public morality arguments put forward by the respondents the 6ourt, citing the Auropean 6ourt of Human (ights &urisprudence of %udgeon v. he 3nited $ingdom JBK , and ;orris v. (epublic of Ireland JLK , stated that mere public disapproval or popular morality is not a sufficient basis for placing such restrictions on the en&oyment of fundamental rights. he 6ourt asserted that the only morality which matters is 6onstitutional morality. he 6ourt determined that the 6onstitution of India protects and promotes diversity and ensures an egalitarian society where freedom is no longer a privilege. he 6ourt determined that criminalisation of homosexuality runs counter to that 6onstitutional morality. "rticle .9 and A)uality he 6ourt reiterated the test set by "rticle .9 that any distinction or classification be based on an intelligible differentia which has a rational relation to the ob&ective sought and is not unfair or un&ust. Section >::, the 6ourt said, does not distinguish between public and private acts, or between consensual and non'consensual acts thus does not take into account relevant factors such as age, consent and the nature of the act or absence of harm. he 6ourt stated that such criminalisation in the absence of evidence of harm seemed arbitrary and unreasonable.

In considering the legal principles imposed by "rticle .9 of the 6onstitution the 6ourt took into account the %eclaration of 4rinciples of A)uality Has current international understanding of 4rinciples on A)ualityI. %rawing on 4rinciples . (right to e)uality), 0 (e)ual treatment) and (definition of discrimination) the 6ourt emphasised the need to include sexual orientation among protected grounds of discrimination and build indirect discrimination and harassment into any consideration of the right to e)uality. hus, dealing with the argument that Section >:: was neutral, as submitted by the ,H", the 6ourt stated that although the provision on its face is neutral and targets acts rather than persons, in its operation it unfairly targets a particular community, having the result that all gay men are considered criminal. his led the 6ourt to conclude that Section >:: discriminated against a particular community in violation of "rticle .9 of the 6onstitution. "rticle .B M Sex or -enderF "rticle .B was described by the 6ourt as a particular application of the general right to e)uality under "rticle .9. he 6ourt considered the petitionerDs argument that the reference to CsexD in "rticle .B should be interpreted as including sexual orientation on the basis that discrimination on the grounds of the latter is based on stereotypes of conduct on the basis of sex. he 6ourt itself referred to the Human (ights 6ommitteeDs decision in oonen v. "ustralia J:K in which the asmanian 6riminal 6ode which criminalised sexual acts between men, was considered a violation of "rticle 0 of the International 6ovenant on 6ivil and 4olitical (ights, where a reference to CsexD was taken as including sexual orientation. ?n that basis the 6ourt stated8 H@e hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by "rticle .B. <urther, "rticle .B(0) incorporates the notion of horiEontal application of rights. In other words, it even prohibits discrimination of one citiEen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horiEontal application of the right enshrined under "rticle .B.I he 6ourt conse)uently found that Section >:: was unconstitutional on the basis of "rticle .B of the 6onstitution. In its conclusion, the 6ourt referred to the belief in inclusiveness which is ingrained in the Indian 6onstitution and explained that discrimination was8 HJ Khe antithesis of e)uality and that it is the recognition of e)uality which will foster the dignity of every individualI. In the light of its findings on the infringement of "rticles 0., .9 and .B, the 6ourt found it unnecessary to deal with the issue of violation of "rticle ./ of the 6onstitution.

In sum, the 6ourt declared that Section >:: of the Indian 4enal 6ode, insofar as it criminalises consensual sexual acts of adults in private, violates "rticles 0., .9 and .B of the 6onstitution.

CONC/U2ION
he results of this increased activity in decriminalising homosexuality are evident in India today. 4opular *ollywood films have, for the first time, begun to include gay storylines. 5ueer film festivals have thrived. ,edia coverage of 7-* issues has become increasingly favourable and led to growing public debate and discussion. "nd every year, thousands march in gay pride parades in cities such as ;ew %elhi and $olkata. hese efforts made it more likely that a strategy against Section >:: that included 7-* groups and drew attention to discrimination against them would succeed. *ecause the ;aE <oundation and #oices against >::2s case focused on the adult and consensual aspects of the law, as well as the health arguments, they were able to include other movements not strictly related to 7-* fights in their cause, bringing together marginalised groups to take down a discriminatory law without leaving sections of the population, such as children, unprotected. Importantly, the petition did not focus on issues of 1morality1 or what constitutes 1natural sex1''instead, by bringing consent to the fore, the petitioners highlighted the discrepancies between Section >:: and the guarantees in the Indian 6onstitution to respect privacy, liberty and non' discrimination. he High 6ourt2s verdict recognised this contradiction, declaring that 1the inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone... hose perceived by the ma&ority as 2deviants2 or 2different2 are not on that score excluded or ostracised (ead more8 Homosexual Historical and religious background N 7aw eacher http8GGwww.lawteacher.netGhuman'rightsGessaysGdrram'manohar'lohiya'national'law'law' essays.phpOixEE0nmsEbkL7 <ollow us8 Plawteachernet on witter N 7aw eacher;et on <acebook