India is a conventional and conformist society. The Indian civilization has always had its fixed standards of morality. As such, certain issues have always been regarded as taboo. Issues such as sex, or sexuality, till recent times, were never discussed publicly on a public forum. But there has been a gradual evolution and today, due to necessity and for the need of awareness, issues like these have become essential to be discussed, and learnt about. One such issue which has been creating a lot of controversy and debate in recent times is homosexuality.

Homosexuality can be characterised as one of the major forces which has been challenging the traditional Indian norms since the last few decades. Believed by a large faction of the population to be an unnatural practice, the homosexuals of India have had a rather tough time putting up with the views of the Indian populace.

Actually, the issue of homosexuality has always been a proscribed matter, which till date has not manifested its full realization in the Indian society due to inherent traditional and religious ideals which preach against it. In fact, till the present day, homosexuals are mocked and sniggered at and openly ridiculed. They are denied the respect an ordinary individual enjoys. But the matter to ponder upon is that, is it right to do so?

Inspite of the fact that Article 15 of the Indian Constitution guarantees that the State or any individual shall not discriminate against any person on the basis of sex, open discrimination in regard to such people continues to take place. The fact is that Indians are strictly regulated by religion and the major religions practised in India do not permit such “unnatural sexual relationships.” Hinduism and Islam, the two major religions prevalent in India, preach against homosexuality and homosexuals. It is more or less considered a sin to indulge in such practices. It is looked upon as unnatural, that is– against the laws of Nature and hence declared as forbidden.

Section 377 of the Indian Penal Code (IPC), which was drafted in 1860 by Lord Macaulay as a part of the colonial project of regulating and controlling the British- and Indian-origin subjects also states against homosexuality. The ambit of Section 377 was devised to criminalize and prevent homosexual associations. Hence, homosexuality was declared as a criminal act.

But the matter to ponder upon is that – no doubt homosexual behaviour is not exactly natural and may be unexpected on the part of humans. However, is it necessary to criminalize it ? Homosexuals, for that matter, may be a little different from the rest of us. Their sexual orientation may not be the same as the rest of the people. But does that make them criminals ? This is a major area of debate.

The movement to repeal Section 377 has been initiated by the Naz Foundation India Trust, an activist group, which filed a Public Interest Litigation in the Delhi High Court in 2001, seeking legalisation of homosexual relations between consenting adults. In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, since nobody had been prosecuted in the recent past under this section. Therefore, it seemed unlikely that the section would be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. However, the Naz Foundation appealed to the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sexual relations from within its purview.

Thus, eventually, in a historic judgement delivered on the July 2, 2009, the Delhi High Court overturned the 150 year old section, legalising consensual homosexual activities between adults. The “essence of the section goes against the fundamental right of human citizens” stated the High Court while striking it down. In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 21 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equal before law.

The court stated that the judgement would hold until Parliament chose to amend the law. However, the judgement keeps intact the provisions of Section 377 insofar as it applies to non-consensual sexual activities and also with regard to such acts with minors.

This judgement does have substantial significance. We need to examine this fragile matter in a broader perspective. It is not only for the homosexual community but also for the rest of the people of the country that such a decision was imperative.

Besides the Naz Foundation, even prominent personalities like Nobel Laureate Amartya Sen and acclaimed writer Vikram Seth, in September 2006, had come together with scores of other prominent Indians in public life to openly demand this change in the legal regime. The open letter demanded that 'In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.'

On June 23, 2008, Indian Labour minister Oscar Fernandes backed calls for decriminalisation of consensual gay sex, and the Prime Minister Manmohan Singh called for greater tolerance towards homosexuals.

On July 23, 2008, Bombay High Court Judge Bilal Nazki said that India's unnatural sex law should be reviewed.

Then again, former Indian health minister Anbumani Ramadoss advocated legalising homosexuality in India. On August 9, 2008, he campaigned for changing "Section 377" of the Indian penal code.

This kind of reaction supporting decriminalizing of consensual homosexual activities has come from various sections of the people because of the important and immediate need of tackling the increasing awareness about the AIDS or HIV epidemic. Section 377 in its present form interferes with the efforts of the Health Ministry to tackle the HIV or AIDS epidemic, as even the doctors treating gay patients could be punished.

We also need to note that the United Nations urged India to decriminalise homosexuality by stating that it would help in the fight against HIV or AIDS by allowing intervention programmes, like the successful ones in China and Brazil. Jeffrey O'Malley, director of the United Nations Development Programme on HIV or AIDS, said that the countries protecting homosexuals from discrimination had better records of protecting them from getting infected by the diseases. But unfortunately in India, the rates of new infections among people continue to go up. Until we acknowledge this kind of behaviour and work with people involved with such behaviour, we will not be able to halt and reverse the HIV epidemic. Countries which guarantee gay rights have double the rate of coverage of HIV prevention services – as much as 60 percent. So we see that legalising homosexuality is not just a demand for the homosexuals but to prevent further sexual infections among healthy or non-consenting adults. India, in comparison to its other post colonial counterparts, is a rather mature and liberal state. Hence, we in India need to act in a more rational manner rather than just sticking to some ideas which we should be overlooking in this present era of globalization.

In this context, let us see what the people in Assam think about this issue.

Dr Tondra Borbora, HOD English, KRB Girls College says, “The heat generated by the moral police of our country regarding the decriminalising of homosexuality is uncalled for. I believe that homosexuality is a relationship as natural as any other relationship. There is no doubt that in a largely conservative society such as ours, same sex intimacy is a huge taboo, but intensive studies by psychologists have thrown much light on the subject. For instance there have been startling relevations made by scientists about the issue, highlighting the significance of such a relationship in establishing a genetic link. Therefore, something as basic as genetic transference needs to be understood with an open mind. Religion is man-made, evolution is not. Therefore, what is in the sphere of natural phenomenon is best left undisturbed.”

Alisha Saikia, a student of LSR College, Delhi, who is working with the Naz Foundation, Delhi, says, “I am really happy that homosexuality has been decriminalized, because in a democratic republic like India, everyone should have the right to freedom of expression. Being a homosexual is not against the forces of Nature because sex and sexuality is natural, but its imposition is social. Even the Manusmriti makes mention of homosexuality, and hence we understand that this phenomenon has been prevalent in India since time immemorial. Therefore the hullabaloo about it is really unnecessary.”

Rakhee Kalita Moral, Professor, Department of English, Cotton College opines, “The Delhi High court's legalisation of homosexuality is a step towards extending the thresholds of human freedom. It protects the right to one's choice of sexual orientation and prevents the individual from being discriminated on grounds of something as private as sexual practice. The bill has been rightfully regarded as progressive and bold and is seen as upholding global awareness of the rights of the individual: however, given the moorings of our own traditional societies, the various age old sanctions and customary mores in what is still largely a conservative ethos, I am not sure how it will augur in terms of responses by the people. How such a transition to alternative sexualities will be handled remains a key question and I personally think that to a very large extent, most Indian people are not prepared to accept the implications of this freedom of sexual choice. While 'times are a changing,' an educated mindset free from the angularities of orthodox perceptions on this subject and severe moral judgements thereof is vital to realising its actual and full import. I think this is a debate that will not resolve itself soon.”

Dr Arup Jyoti Choudhary, Professor , Department of Political Science, Cotton College says, “I do not think that homosexuality is naturally justified. And if it is continued it will be difficult to maintain the social fabric.”

Sampurna Sonowal, a psychologist working as a Human Resource Consultant at Right Management India Pvt Ltd, Banagalore, says, “Sigmund Freud, the Father of modern psychology, believed that all human beings are innately bisexual, and that they become heterosexual or homosexual as a result of their experiences with parents and others. However, this opinion of Freud has invited debate amongst the later psychoanalysts. A lot of research is gaining momentum to understand the genetics of homosexuality, where it is concluded that genetics is responsible for homosexuality.

“Due to the pressure of social identity, a lot of homosexuals do go through a “coming out” experience, when being different from their peers raises the question of “identity”. As a result of identity crisis and societal stigma, gays/lesbians either commit suicide or learn to practically lead a normal life, repressing one’s real emotions, living a dual life, that might prove to be fatal to their real self. As Freud said, “It is a great injustice to persecute homosexuality as a crime, and cruelty too....it is nothing to be ashamed of. I strongly believe that being homosexual does not divorce the person from being Human, we need to understand their orientation and respect them for the person they are.”

Hence we see that homosexuality, as perceived by a major section of the people, is not totally unnatural. We need to realize that homosexuals are also humans and as humans they have as much a right to their life as any of us. Being homosexual does not make them less human, and definitely not criminals. Control over sexuality is a complex issue which cannot be resolved by mere debating. If homosexuality was unnatural, why would some people be naturally born as eunuchs? That itself is enough proof that it is a natural phenomenon. Therefore, decriminalizing it is the least that can be done to provide these people a little of something called life…

Sabrina Iqbal Sircar