Indian Society and Homosexuality

In India, so far no such progressive changes have taken place as regards social and legal
recognition and homosexuals remain victims of violence in different forms supported by the
state and society. In India from a scattered group of a few hundred, homosexuals are at
present ten crore strong and growing community evolving its own hip and happenings.

They are weaving there way from metros into semiurban societies both online as well as
offline. This number is gradually increasing with more and more such people coming out of
the closet.

While Delhi and Mumbai (with five lakh gays each) and, to a lesser extent, Bangalore and
Calcutta are the hub of the Indian gay movement, people from smaller towns in Gujarat,
Maharashtra and Bihar are also coming out

A number of cities and larger towns, such as Karnataka, Delhi, Mumbai, Calcutta, Bangalore,
Hyderabad, Pune, Chennai, Patna, Lucknow, Akola, Trichi and Gulbarga, had a number of
resources for gays, lesbians and transgender communities that include - help-lines,
publications/newsletters, health resources, social spaces and drop-in centers.

In recent past the homosexual community of Calcutta, Mumbai and Banglore also hosted the
gay pride march. 28 All the above instances show that the homosexual community in India is
visible and is gradually becoming vocal in their demand.

The shift in the understanding of homosexuality from sin, crime and pathology to a normal
variant of human sexuality occurred in the late 20th century. The American Psychiatric
Association, in 1973, and the World Health Organisation, in 1992, officially accepted its
normal variant status. Many countries have since decriminalised homosexual behavior and
some have recognised same-sex civil unions and marriage.

The new understanding was based on studies that documented a high prevalence of same-sex
feelings and behavior in men and women, its prevalence across cultures and among almost all
non-human primate species.[2] Investigations using psychological tests could not
differentiate heterosexual from homosexual orientation. Research also demonstrated that
people with homosexual orientation did not have any objective psychological dysfunction or
impairments in judgement, stability and vocational capabilities. Psychiatric, psychoanalytic,
medical and mental health professionals now consider homosexuality as a normal variation of
human sexuality.
 2

Human sexuality is complex.[2] The acceptance of the distinction between desire, behavior
and identity acknowledges the multidimensional nature of sexuality. The fact that these
dimensions may not always be congruent in individuals suggests complexity of the issues.
Bisexuality, both sequential and concurrent, and discordance between biological sex and
gender role and identity add to the issues. Medicine and psychiatry employ terms like
homosexuality, heterosexuality, bisexuality and trans-sexuality to encompass all related
issues, while current social usage argues for lesbian, gay, bisexual and transgender (LGBT),
which focuses on identities.

The prevalence of homosexuality is difficult to estimate for many reasons, including the
associated stigma and social repression, the unrepresentative samples surveyed and the failure
to distinguish desire, behavior and identity. The figures vary between age groups, regions and
cultures.

Medicine and science continue to debate the relative contributions of nature and nurture,
biological and psychosocial factors, to sexuality.[2] Essentialist constructs argue for biology
and dismiss personal and social meanings of sexual desire and relationships. On the other
hand, constructivists support the role of culture and history. While essentialism and
constructionism, on the surface appear contradictory, they may mediate orientation and
identity, respectively.
Anthropologists have documented significant variations in the organisation and meaning of
same-sex practices across cultures and changes within particular societies over time. The
universality of same-sex expression coexists with variations in its meaning and practice
across culture. Cross-cultural studies highlight the limits of any single explanation of
homosexuality within a particular society.

Classical theories of psychological development hypothesize the origins of adult sexual

orientation in childhood experience.[2] However, recent research argues that psychological
and interpersonal events throughout the life cycle explain sexual orientation. It is unlikely
that a unique set of characteristics or a single pathway will explain all adult homosexuality.

The argument that homosexuality is a stable phenomenon is based on the consistency of

same-sex attractions, the failure of attempts to change and the lack of success with treatments
to alter orientation.[2] There is a growing realisation that homosexuality is not a single
phenomenon and that there may be multiple phenomena within the construct of
homosexuality.

Anti-homosexual attitudes, once considered the norm, have changed over time in many social
and institutional settings in the west. However, heterosexism, which idealises heterosexuality,
considers it the norm, denigrates and stigmatises all non-heterosexual forms of behavior,
identity, relationships and communities, is also common.
 3

In addition to the challenges of living in a predominantly heterosexual world, the diversity

within people with homosexual orientation results in many different kinds of issues.[2] Sex,
gender, age, ethnicity and religion add to the complexity of issues faced. The stages of the
life cycle (childhood, adolescence, middle and old age), family and relationships present
diverse concerns. In most circumstances, the psychiatric issues facing gay, lesbian and
bisexual people are similar to those of the general population. However, the complexities in
these identities require tolerance, respect and a nuanced understanding of sexual matters.

Clinical assessments should be detailed and go beyond routine labelling and assess different
issues related to lifestyle choices, identity, relationships and social supports. Helping people
understand their sexuality and providing support for living in a predominantly heterosexual
world is mandatory. People with homosexual orientation face many hurdles including the
conflicts in acknowledging their homosexual feelings, the meaning of disclosure and the
problems faced in coming out.

Gay-affirmative psychotherapies have been developed, which help people cope with the
awareness of being same-sex oriented and with social stigmatization. There is no evidence for
the effectiveness of sexual conversion therapies.[2,3] Such treatments also raise ethical
questions. In fact, there is evidence that such attempts may cause more harm than good,
including inducing depression and sexual dysfunction. However, faith-based groups and
counsellors pursue such attempts at conversion using yardsticks, which do not meet scientific
standards. Clinicians should keep the dictum “first do no harm” in mind. Physicians should
provide medical service with compassion and respect for human dignity for all people
irrespective of their sexual orientation.

The landmark judgement of the Delhi High Court, which declared that Section 377 of the
Indian Penal Code violates fundamental rights guaranteed by the constitution, was in keeping
with international, human rights and secular and legal trends.However, the anti-homosexual
attitudes of many religious and community leaders reflect the existence of widespread
prejudice in India.[5,6] Prejudice against different lifestyles is part of many cultures,
incorporated into most religions, and is a source of conflict in Indian society.

There are few small case series in psychiatric literature detailing homosexuality in males and
its treatment with aversion therapy. Heterosexim and anti-homosexual attitudes among
psychiatrists and mental health professionals have been documented. The international
classification of diseases-10 category (F66) employed to code egodystonic sexuality seems to
be only employed in clinical practice only for homosexuality, suggesting continued
pathologization. It places the responsibility on the individual without critically examining the
social context, which is stigmatising and repressing. The medicalization of sexuality and the
 4

political impact of labelling and its role in social control are often discounted. The ubiquitous
use of disease models for mental disorders is rarely questioned.

There is a dearth of Indian psychiatric literature that has systematically investigated issues
related to homosexuality. Data on prevalence, emotional problems faced and support groups
and clinical services available are sparse. Research into these issues is crucial for increasing
our understanding of the local and regional context related to sexual behavior, orientation and
identity in India.

Despite medicine and psychiatry arguing that homosexual orientation is a normal variant of
human sexuality, mental health fraternity and the government in India are yet to take a clear
stand on the issues to change widely prevalent prejudice in society. The fraternity needs to
acknowledge the need for research into the context-specific issues facing LGBT people in
India.

The teaching of sexuality to medical and mental health professional needs to be perceptive to
the issues faced by people with different sexual orientations and identities. Clinical services
for people with such issues and concerns needs to be sensitive to providing holistic care.

A positive and a non-judgemental attitude will go a long way in relieving distress.

Professional societies need to increase awareness of these issues, transfer knowledge and skill
and provide opportunities to increase the confidence and competence of mental health
workers in helping people with different sexual orientations and identity. Psychiatrists and
mental health professionals need to be educated about the human rights issues and possible
abuses. The emphasis should not just be on education but also on a change of attitude. The
development and dissemination of clinical practice guidelines is also essential.

Human sexuality is complex and diverse. As with all complex behaviors and personality
characteristics, biological and environmental influences combine to produce particular sexual
orientation and identity. We need to focus on people's humanity rather than on their sexual
orientation.
 5

Legal Status of Homosexuals in India

Section 377 30 of the Indian Penal Code (1860) relates to Unnatural Offences and includes
homosexuality within its domain. In India this Law relating to homosexuality was adopted
from the British penal code dating to 19th century.

Section 377 states: “Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with 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.” Similarly section 292 of IPC refers to obscenity and there is ample scope to
include homosexuality under this section.

Also section 294 of Indian Penal Code, which penalizes any kind of "obscene behaviour in
public", is also used against gay men. It is important to note here that in England the offence
of homosexuality between consenting partners has been abolished by the Sexual Offenders
Act 1967 (that is in the country of origin of this law) whereas in India, the consent is quiet
immaterial for constituting an offence as defined under this section. 31

Thus in India it is primarily section 377 which explains and defines unnatural offences. 32 It
is this section which makes Homosexuality illegal with life imprisonment or with
imprisonment for ten years with fine 33 .

Legal position of homosexuality in India can be understood with objective

reading of the decision of honourable Delhi High court in the case of Naz
foundation v. Government of NCT of Delhi1 which was dramatically set aside
by the decision of Apex Court in the case of Suresh Kumar Koushal v. Naz
foundation2.

Both the cases as have been decided by Honble Delhi High Court and Honble
Supreme Court revolves around the constitutional validity of section 377 of
Indian Penal Code, 1860. Thus, it becomes extremely important to discuss and
understand the same. The bare provisions of section are as follows: -

“377. Unnatural offences. —Whoever voluntarily has carnal intercourse against

the order of nature with any man, woman or animal, shall be punished with

1
‎061Delhi Law Times 722
2
(2014) 1 SCC
 6

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.”3

Ingredients of section 377

 against order of nature- the phrase order of nature has been defined
as something pure, something distinguished from artificial and
contrived4. Every organ has a designated function assigned by the
nature. the organ works in tandem and are not meant to be abused.
If abused, same goes against the der of nature. Thus, anything
which does not fall under such a definition can be classified as
against the order of nature.
 Carnal intercourse5- to make a person liable under section 377 of
IPC it must be proved that there was carnal intercourse against the
order of nature. Initially the term included anal sex, it later
included oral sex and still later, read to cover penile penetration of
other artificial orifices like between the thighs6 or folded palms, in
mouth or oral7.

The law made consent and age of the person irrelevant by imposing a blanket
prohibition on all penile-non-vaginal sexual acts under the vague rubric of
„unnatural offences‟

3
section 377 of Indian Penal Code, 1860
4
Black’s law dictionary
5
The word 'intercourse' means 'sexual connection' (Concise Oxford Dictionary). In Khanu v. Emperor AIR 1925
Sind 286
6
State of Kerala v. Kundumkara Govindam 1969 Cri LJ 818(KER) Even if I am to hold that there was no
penetration into the vagina and the sexual acts were committed only between the thighs, I do not think that
the respondents can escape conviction under Section 377 of the Penal Code. The counsel of the respondents
contends (in this argument the Public Prosecutor also sup. ports him) that sexual act between the thighs is not
intercourse. The argument is that for intercourse there must be encirclement of the male organ by the organ
visited; and that in the case of sexual act between the thighs, there is no possibility of penetration
7
Lohana Vasantlal Devchand v. State AIR 1968 Guj 252 in this case there were three accused two of them had
already committed the offence in question i.e. carnal intercourse per anus the third co accused could not
succeed in having carnal intercourse per anus as the victim began to develop a lot of pain and thus he inserted
his male organ in the mouth of the victim and seminal discharge took place. The third co accused was held
guilty under section 377 0f IPC
 7

CONCLUSION

Homosexuality in India has been a subject of discussion from ancient times to modern times.
Hindu texts have taken positions regarding the homosexual characters and
themes.[1] Rigveda, one of the four canonical sacred texts of Hinduism says Vikriti Evam
Prakriti (meaning what seems unnatural is also natural),[2] which some scholars believe
recognises homosexual dimensions of human life, like all forms of universal diversities.

The ancient Indian text Kamasutra written by Vātsyāyana dedicates a complete chapter on
erotic homosexual behaviour. Historical literary evidence indicates that homosexuality has
been prevalent across the Indian subcontinent throughout history, and that homosexuals were
not necessarily considered inferior in any way until about 18th century during British colonial
rule.[3] On 6 September 2018, a 5-judge constitutional bench of Supreme Court of
India invalidated part of Section 377 of the Indian Penal Code, hence making homosexuality
legal in India.[4] In striking down the colonial-era law that made gay sex punishable by up to
10 years in prison, one judge said the landmark decision would "pave the way for a better
future."[5] This ruling also applied to Jammu and Kashmir state under Article 141 of the
Constitution of India and Delhi Agreement 1952, as section 377 of IPC and Ranbir Penal
Code is prima materia and Judicial Pronouncements were extended to Jammu and Kashmir.

There are no official demographics for the LGBT population in India, but the government of
India submitted figures to the Supreme Court in 2012, according to which, there were about
2.5 million gay people recorded in India. These figures are only based on those individuals
who have self-declared to the Ministry of Health. There may be much higher statistics for
individuals who have concealed their identity, since a number of homosexual Indians are
living in the closet due to fear of discrimination.

Homophobia is prevalent in India. Public discussion of homosexuality in India has been

inhibited by the fact that sexuality in any form is rarely discussed openly. In recent years,
however, attitudes towards homosexuality have shifted slightly. In particular, there have been
more depictions and discussions of homosexuality in the Indian media[10][11] and cinema.

Before striking down the colonial-era law several organisations have expressed support for
decriminalising homosexuality in India, and pushed for tolerance and social equality
for lesbian, gay, bisexual, and transgender people. India is among countries with a social
element of a third gender, but mental, physical, emotional and economic violence against the
LGBT community in India prevails