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IS INDIA READY TO ACCEPT HOMOSEXUALITY?

Author: Shreya, III year of B.A LL.B. from Surendranath law college (Calcutta University).


Introduction

We live in a society surrounded by people who are characterized by three genders. Homosexuality is recognised as the third gender in India by the Judgment of the Supreme court in the case of the National Legal Service Authority (NALSA) vs Union of India.[i]


Homosexuals are a person who is neither completely male nor completely female. A homosexual person is a person who is attracted to someone of the same gender. The term homosexual includes two variations, Lesbian (female who is attracted towards someone of her gender) and Gay ( Male who is attracted towards someone of his gender). In India, they are called by different names in different regions of the country. Some of the common names are Hijra, Kinner, Chakka, etc.


Historical Background of Homosexuality in India

Homosexuality in India is not a new concept, they have been a subject of Discussion from Ancient times.


· Rigveda is one of the four canonical sacred texts of Hinduism, says VikritiEvamPrakriti (meaning what seems unnatural is also natural).


· Sanskrit is the oldest language in the world, which includes three genders in its grammar one of which is Napunsaka linga.


· The ancient Indian text Kamasutra written by Vātsyāyana dedicates a complete chapter on erotic homosexual behaviour.[ii]Even the KandariyaMahadeva temple in Khajuraho which is famous for their erotic sculptures, contain several sculptures on Homosexual activities. And historians don’t argue upon these sculptures to be sinful and immoral.


There are characters in the ancient Indian stories that States the presence of the third gender in Indian history or ancient period. Lord Shiva manifests himself in a form called Ardhanarishvara, who is half man and half woman, which is worshipped all around India.


If we look back at our epics, like “Ramayana” and “Mahabharata”, we come across numerous instances of “the third gender”.As in the ancient Indian epic Mahabharata the one whose aim was to kill Pitamah, named Shikhandi, who was born female identified as male, made it clear about the presence of Homosexual people in ancient times.


Journey of Legalisation of Homosexuality in India

The Indian ancient law code, Manusmriti provided for the punishment of homosexual men and women engaged in intercourses with the person of the same gender.


Section 377, of the Indian Penal Code, describe homosexuality as an unnatural offence and prescribed punishment of imprisonment for life. However, the Naz Foundation case which was a landmark Indian case, held that treating consensual homosexual intercourse between adults as a crime is a violation of fundamental rights protected by India's Constitution.[iii]


After decades of arduous battle with the courts for legalization. In September 2018, the landmark judgment of the Supreme court in Natej Johar VS Union of India, in which the Supreme court of India made rules that Homosexual Relations is no longer a criminal offence and the court unanimously declared section 377 unconstitutional[iv]. Which can be considered as a sigh of relief for the third gender. Same-gender marriage is still not legal under the Hindu marriage act 1955 or any personal law of marriage. Therefore, Homosexual couples are also not allowed to adopt legally but it can be presumed that may be in future the government can legalize that for their preference.


The Transgender Persons (Protection of Rights) Act, 2019 passed by the Parliament of India. Which prohibits discrimination against them in employment, education, housing, healthcare and other services. Where the bill defined transgender as one whose gender does not match the gender assigned at birth. The bill provides a certificate of identity for a transgender person which was not available before this bill, somehow this bill provide identity to transgender people.


Social acceptance

As I have grown up in a country like India, listening to gossip about Karan Johar, his gender and lifestyle. It is somehow easy for the film and fashion industry to accept things about their gender as they gain sympathy or fame from that but still today in India as a common person being a Homosexual means rejected by the family and excluded by the community and even facing violence or become a topic of entertainment as joke or gossips for relatives and others.


The people in our country can never change; they don't concentrate on their own life or work and just need a topic to gossip with each other as they feel satisfied by torturing others. And here the word Hijra which is used in most regions of India for indicating Homosexuals is used to make fun of someone or as a label of abuse to make a person realize that he is incapable of something. Even those people who stood against homosexual are the ones who believe that they are preserving their culture because they just believe that homosexuality is these days fashion adopted by the new generation from the western culture but they don’t try to understand that it is natural.


Even when the small child asks from there parents with curiosity, when they saw a Homosexual ( gay, lesbian ) for the first time in there way different look or in their personality, their parents warn them to stay away from those people, they are not good for you. Instead of making their children aware of genders, they create their mentality and pass the same to their innocent children who follow their advice.


In India when children come out after realising about them, “ The parents blame themselves, especially the mother blame herself, she thinks that something happened during pregnancy that her child turned out in this way.” In India the parents especially the older generation never accept the children as Lesbian or Gay, they used to force their children to make contact with the opposite gender and take them to the psychiatrist because they feel it’s just a mental illness. Inside every parent, “ the fear of losing their families and social status is so strong that they can’t even think about their child's feelings and that’s why they believe it’s nothing but some mental illness.”


Some of the people of Homosexual (Gay, Lesbian) has to live their whole life acting as someone else in their own home, office and through their life’s and they have to act like someone, who they not really are. When a person of the third gender marries someone of the opposite gender because of the fear of society or the social status of their parents is like cheating on their partners for their whole life and somehow, they take their own family as a burden not as a responsibility.


So, why do they have to live their life pretending to be someone else and who should be blamed for this? For every problem that comes out in our country, we blame our government for their policies and our legislation but in this case, they are on the right side, supporting the unprivileged and the blameworthy one is us. We as a society with our unity discriminate against them proudly torturing them somehow every day that they fear to accept their reality of gender and personality throughout their lives. This time the government can’t be blamed for any harm that causes them, we as a society are guilty of our harsh nature towards them as we torture them throughout their life and they don't even stand against us.


We should ponder the question that is justified in insulting them, criticizing them just because they want to keep their identity real. I believe now, it’s time to stand with them to give them the hands of the trust, they were looking for so long. So, they could equally live their life fully without pretending to someone else. So, first, we need to make people aware of their existence which is quite natural without any doubt and we should accept them in that way. Because social acceptance is necessary for the survival of someone in a society, so we as a society are obligated to accept them the way they are naturally.

The world as we have created it is a process of our thinking. It cannot be changed without changing our thinking.

-Albert Einstein


Conclusion

We as a human must be equally responsible to not to discriminate between peoples, personalities and gender. For those who think that the third gender has never existed and it’s totally against our culture, they should kindly pick our epics and read them instead of giving the excuse that you are preserving our culture. We need to change our perspective towards them, one movement of understanding and support from your side can change many things in someone's life.


They are as natural as any human being, they are the creation of God and we should treat them and accept them in the same manner as any other natural creation of this earth. No government policies, decisions of the judiciary, will be that helpful for them without the support of society because they are a part of society. So, it is their right to being socially accepted by society. Till then, India is not ready to accept homosexuality.

[i]https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/

[ii]https://en.m.wikipedia.org/wiki/Homosexuality_in_India

[iii]https://en.m.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi

[iv]https://en.m.wikipedia.org/wiki/Navtej_Singh_Johar_v._Union_of_India