Even after Section 377 was decriminalised in India, homosexuality continues to be a taboo subject. And the LGBTQIA+ community continues to face social ostracization, one that is offered from within and outside the family. The present commentary by Disha Pathak briefly discusses society’s obsolete lens on homosexuality and the judiciaries’ own flaws in realising the 2018 Judgement.
By Disha Pathak, a third-year student of University Institute Of Legal Studies, Punjab University, Chandigarh.
“Reason is powerless in the expression of Love”.
How Does Society View Homosexuality?
India is a land of culture, heritage, and values. But with each passing year, the obsession with rigid gender identities has only become unwavering.
Most of these moral and social rigidities defy India’s medieval past that was inclusive of homosexuality. From Madhya Pradesh’s Khajuraho Temple proudly owning homosexuality in its sculptures to the Urdu-Perso poetry, which depicts romantic and erotic interaction between men across class and religious divides.
Despite clear traces of homosexuality and homoerotica across religion and culture, the proscription that came from the British gave a lasting immoral lens to homosexuality in India.
The article will discuss how Indian society views sexuality; and if the decriminalisation of Section 377 could bring about any moral change? It will speak of the Indian judiciary as an institution that lacks immunity from societies’ moralities.
Indian Society and Its Tussle With Acceptance
The stereotypes and taboos around homosexuality go back to the British Colonial rule in India. It was the British’s own insecurities that were pushed down the throat of the colonised. The very act of same-gender sex first became immoral legally, and thereafter, socially. The proscription of homosexuality by the colonisers was their way of eclipsing India’s medieval culture and folklore. As a result, in 1861, homosexuality got criminalised in India under section 377 of the Indian Penal Code.
Though the Supreme Court reversed the same in 2018, it came to effect only after much ado and international backlash. Homosexuality is still seen as an act against nature and subsequently against familial and social norms.
Patriarchal set-ups within the family dictate Indian marriages and their functioning. Most of the marriages are weighed down by the quest for a family lineage. And these set-ups are traditionally against anything that doesn’t identify as cultural. The family structure inherently follows the logic of solidified gender roles.
As a society, we need to come to terms with homosexuality. It is prevalent and won’t cease to exist even if we blind ourselves to obsolete notions.
At present, India seems far from accepting this truth. People still confuse homosexuality with a disease, labelling it as a ‘temporary phase’. The Indian society often attributes homosexuality to being feminine and devoid of loud and traditionally accepted ‘masculinity’. Instead of celebrating love or choice, we are drawn to heterosexual unions validated by the societies’ threshold of acceptability.
LGBTQIA+ Community and Strife With Legal Morality
Is law inherently moral? Are legal principles based on societies morals or devoid of preconceived or popular morality?
Several legal theorists and philosophers have addressed these questions through jurisprudential reasonings. But in the light of homosexuality, it is imperative to ask whether the judiciary is morally inclined to the social or constitutional?
In Navtej Singh Johar & Ors v. Union of India & Ors, the Court differentiated societal/social morality and constitutional morality, asserting that the courts need to follow the latter. It said:
“The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society”
Though the Supreme Court decriminalised homosexuality in this historical judgment, did the judiciary actuate a change within its own institution?
In a conversation with Oxford Union, Lawyers and couple Arundhati Katju and Meneka Guruswamy, who fought for the decriminalisation of Section 377, recalled one of the many incidents while reflecting on judicial biases.
She explained how a senior justice among a small panel of the Supreme Court asked a government lawyer, ‘if he knew any homosexuals’. The government lawyer responded laughingly, ‘I’m not that modern milord’. She noted that the entire conversation was telling that neither the Court nor the government lawyer was aware of any ‘homosexuals’. And only highlighted the ignorance and bias within the judiciary.
So this disparity and infusion of the moral with the legal can be traced back to the judges’ morality. And it would be naïve not to recognise the deep-rooted societal biases around gender roles in the legal corridors.
A public servant representing the State equated homosexuality with ‘modernity’ and not ‘equality’. This is also telling how the government viewed and continues to view the LGBTIQIA+ community. The same was witnessed in recent developments where the government repulsed the elevation of a gay lawyer.
Saurabh Kirpal, a senior advocate at the Delhi High Court, whose elevation as a judge has been deferred four times, said,
“It was not possible for me with all my privileges to come out as an openly gay man and practice in Court.”
This sheds light on the state’s inability to look beyond the sexual identity of a person irrespective of the latter’s experience and credentials.
Though marriage is more symbolic, it also ensues legal status to the couple. Therefore, recognising the very right and choice of marriage is essential. And the same must be an option for all.
When questioned about the legality of gay marriages, the government said:
“Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender.”
Even the personal laws in India are pretty contrary to Section 377 judgement.
For instance, Section 5 of The Hindu Marriage Act, 1955 sanctions marriage between “any two Hindus”. At the same time, it specifies the gender since the Act is worded within conventional gender identities, fixating on ‘bridegroom’ and ‘bride’.
The Hindu Adoption and Maintenance Act, 1956 is also restricted to only a man and a woman. While it speaks about the adoption procedures for a widower, it nowhere mentions another gender. And this is after the government passed the half-baked Transgender Persons Act in 2019.
A Long Wait for Change
Looking at the present situation, no one can deny that equality is still a distant reality even within the judiciary. Hence, change can only begin when society acknowledges the LGBTQIA+ community and the legal rights will follow.
In March this year, Justice N. Anand Venkatesh, while hearing a petition by two men seeking protection and recognition as partners in the Madras High Court, recognised his own ‘preconceived notions’. Justice Vanketesh said:
“To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue. That is the reason why I am trying to develop this case brick by brick and ultimately, construct something purposeful on this issue.”
The morals and principles change with time, and so does the law. The change begins at home and continues through education and awareness. Diversity and inclusion at law schools in particular and educational institutions, in general, should be encouraged and promoted. Anti-discriminatory laws need to be promulgated; these should prohibit discrimination and hate based on gender and sexual preferences.
There is a need for equality for all sexual identities within the state’s institution, even in the judiciary. First, we will need gender-inclusive panels, committees, and a judicial bench comprising persons of the LGBTQIA+ community.
As long as there is consent, laws should protect personal life but never interfere with personal space. The Supreme Court, while pronouncing the Section 377 judgment, said,
“History owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the “ignominy” and “ostracism” they have faced through the centuries.”
Moving forward, we must remember this.