Author: Harsimar Kaur
Student, Panjab University Regional Centre, Ludhiana
Legal System represents the heart beat of any nation. In other words, Laws and Statutes and their enforcement are like a pillar upon which the whole nation operates. These laws influence the state not only legally, morally or socially but economically as well. This compels us to think that how laws can diversely affect the economic aspect of the country. Talking about laws related to Individuals who are sexually attracted towards the people of same gender or Homosexuals in India, former Chief Justice of Supreme Court ‘Dipak Mishra’ in a landmark case of Navtej Singh Johar v. Union of India uttered these words “I am what I am, so take me as I am” while striking down those parts of Section 377 which provides that consensual sexual intercourse between same sex adults as unnatural offence and against the order of the nature in India. Therefore, we can say that Homosexuality is a controversial subject matter. There is a long road to Homosexuality in India which focuses on reaching the final destination where the ideal society rests on the central premise that all humans are equal.
Our Indian History is evident to prove the fact related to the existence of Homosexuality in India. There are Historical events that has seen a long-lasting struggle by Homosexuals and Queer Community fighting for their equal Rights and true identity. Talking about Historical perspective homosexuality did exist in ancient India. Hindu Mythology also give a description or existence of intersex or third gender characters which are often found in Religious Narratives such as Shikhandi in Mahabharata. Evidence of same can also be drawn from the sculptures of Khajuraho temple giving enough peep into the ancient time of India to prove that Homosexuality was in practice. It is to be believed that Alauddin Khalji, emperor of the Khalji dynasty that ruled the Delhi Sultanate in Indian Sub-continent was also Bisexual. Therefore, we can say that History has seen existence of homosexuals and their position were not considered to be inferior until the rise of British colonial Rule in 18th Century.
As mentioned earlier, Laws of the nation are something that decides the character of the country. Before 2018, Section 377 was used to prosecute homosexual activity and considering it “against the order of nature” followed by British Colonial Penal Code. Section 377 of IPC was introduced in 1861 during the British Rule of India. Section 377 was modelled on Buggery Act of 1533. The Section of Buggery Act was drafted by Thomas Macaulay which defined “Buggery” as an unnatural sexual act against the will of God and man, thus criminalizing penetration, bestiality and homosexuality.
LGBTQIA has been a victim of injustice and ‘Corrective rape’. Therefore, in 2001 a non- governmental organization called ‘The Nazz Foundation’ approached Delhi High Court and demanded that Homosexuality should be Decriminalized by striking down those portions of Section 377 which made it illegal. As a result, in 2009 Delhi High Court declared Section 377 to be violative of Fundamental Rights Guaranteed by the Constitution “insofar as it criminalized consensual sexual acts of adults in private.
However, there were some parties who were in favor of retention of Section 377. Therefore, as a result the matter went to Supreme Court in Suresh Kumar koushal and another v Nazz foundation ,where the Supreme Court Struck down the decision taken by Delhi High Court in Nazz Foundation Case. Further Supreme Court hold that Section 377 is not ultravires to Article 14 and 15 of the Constitution and upheld the constitutionality of Section 377 of IPC. This Decision of Supreme Court left the whole Indian queer community in an utter state of shock. This led to increase in suicide cases of Homosexuals in India. On 10th June, 2018, two women name ‘Asha’ and ‘Bhavna Thakor’, aged 30 and 28 committed suicide and jumped to death in Sabarmati River by writing a note saying that the world won’t let them to stay together with each other.
Due to increased number of suicide cases by queer community, the case was reopened again by Supreme Court regarding the validity of Section 377. Finally on 6th September, 2018- the Supreme Court ruled in favor of Humanity by unanimously Decriminalizing a 158 years old colonial law under Section 377 in case of Navtej Singh Johar v. UOI. India saw a new ray of hope and the two leading lady advocates named ‘Maneka Guruswamy’ and ‘Arundhati katju’ who argued against the discrimination and violence faced by LGBTQ on everyday basis; the duo also opened about being in a Homosexual relationship with each other.
Now, Homosexuality is no longer a crime in India. But same sex marriage has still not been recognized by India and a number of petitions has been filed with regard to valid recognition of Sam Sex marriage which has been rejected by Delhi High Court in the name of a practice against Indian Social values and Culture.
It is notable that LGBTQ has wrestle or struggled and is still struggling to get those Rights as people from Straight community Enjoy. The reason for their present struggle is recognition of gay marriage, surrogacy, adoption rights and other civil rights. Even after the verdict given in the year 2018 related to Section 377, Individuals who identify themselves as Lesbians, Gay, Bisexual, Transgender are migrating towards other countries. The reason for their migration is not economic in nature but due to their sexual orientation which is known as Gay Brain-Drain. This migration is costing India a huge loss in terms of money and economic growth. The motive of gay people leaving India is to live in abroad where they are granted civil rights and moreover, they can live with someone with full dignity and equality and to finally marry someone they love with a hope to start a family.
The World Bank study conducted in the year 2015 estimates that India loses 0.1 to 1.7% per GDP because of the discrimination against queer community. In India major chunk of people are homosexuals and that’s why Educated queer migrating to abroad is negatively impacting the Indian Economy. However, this Problem can be resolved by Granting Equal Rights to LGBTQIA+. These educated young queers are the assets of the country their migration is something a heavy liability on the nation due to queerphobia. In addition to this, awareness should be created through education in schools and colleges and employment opportunities should be made available to queers without any obligation based on their sexual orientation.
If the tradition of Gay Brain Drain continues then India will soon start to lose its productivity. Therefore, our legislation must come forward to put an end to this problem and think of an alternate or put forward such laws that eliminate the line of distinction between Queer and Straight Community. Emphasis should be put on to build up a society where protection can be granting to homosexuals and they no longer will mentally or physically be harassed by any queerphobic individual. Moreover, mental health of these people is necessary to be taken into consideration. They are vulnerable and more likely to commit suicide due to their fear of non-acceptance by friends, family and society. It the need of the hour, that being a vigilant citizen it’s our moral duty to provide a safe and comfort zone to homosexuals and accept them as a part of society with open heart.