Partners for nearly a decade, Sarah Keith and Emma Powell are moving next month from their native England to New York. But first, they have an important piece of business to take care of: their wedding.
With the stroke of midnight at 28th March 2014, same-sex couples were, for the first time, permitted to marry in England and Wales, and many did in middle-of-the-night celebrations. The weddings united same-sex partners who have for a decade been allowed to form civil partnerships, but until now have been prohibited from tying the knot. [1. http://www.washingtonpost.com/world/gay-marriage-ban-ends-in-england-and-wales-on-saturday/2014/03/28/f2f15453-6502-4557-ad3c-10e24fddb746_story.html] This is a huge step for homosexual people in democratic countries as England and Wales which already had rights such as couples are allowed to adopt children, and gay service members are permitted to serve openly in the military. But with the allowance of marriage it seems that homosexual people are now having the exactly same rights then heterosexual couples have.
If you compare now the Gay Rights in India with England and Wales it is different to the point that India made a wrong turn in December 2013 and took the gay rights away. Will there be any chance to change it again to strengthen gay rights?
What happened? Let me start with illustrating the implementation of the Indian Penal Code in 1860, the main criminal code of India. This code tries to cover all substantive aspects of criminal law. This law came into force in British India during the British Raj period where India was ruled by the British Empire. [2. http://www.britannica.com/EBchecked/topic/285760/Indian-law?anchor=ref113113] Chapter XVI “Of Offences Affecting The Human Body” includes the Section 377, a Section every homosexual know in India. The Section 377 is called “Unnatural offences” and stated the following:
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 152[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. http://www.advocatekhoj.com/library/bareacts/indianpenalcode/377.php?Title=Indian%20Penal%20Code%201860&STitle=Unnatural%20offences] The ambit of Section 377, which was devised to criminalize and prevent homosexual relationships and/or other acts extend to any sexual union involving penile insertion.
In 2009 the section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi. This was a response to a lawsuit field eight years earlier by the Naz Foundation (India) Trust, a gay rights and HIV/AIDS advocacy organization. The court had held that Section 377 of the Indian Penal Code, which prohibits sexual activities “against the order of nature”, violated the constitution by depriving citizens of their Human Rights to equal treatment under the law, privacy, and freedom of expression. This decision was an important turning point for India’s LGBT (Lesbian, gay, bisexual and transgender) community, which described this result as a moral victory. Soon after the judgment Anjali Gopalan, the Director of Naz India stated, “The judgment is fabulous, and it will be hard to counter it legally. Religious groups have their own point of view, but they can’t impose it on us. We are a secular country.”
But instead of appreciation of the new decision, far more Indians were dismayed with it and even 73 percent of Indians believed that homosexuality should be illegal again. A coalition of conservative religious and political groups directly reacted to the Supreme Court and argued that homosexuality is an offense against public morality and Indian culture values. [4. Ira, Trivedi. (March/April 2014). Foreign Affairs, 21-26.]
In December 2013 five years of euphoria has gone again and India turned around to the past. On the 11th December 2013 the country’s highest court sided with them. The Supreme Court overturned the lower court’s ruling, once again making gay sex a crime punishable by up to ten years in jail and putting tens of millions of Indians at risk of prosecution or harassment. [5. http://www.independent.co.uk/news/world/asia/indias-gay-community-scrambling-after-court-decision-recriminalises-homosexuality-9146244.html] Shortly after this judgment a lot of critics arose. “It is the duty and responsibility of judges to rise above their own biases and behave like true judges” and it is “a throwback to a bygone era where there was no concept of human rights.”, said Indira Jaising, a prominent Indian lawyer. [4. Ira, Trivedi. (March/April 2014). Foreign Affairs, 21-26.]
“We can’t bring Western culture into our society”, stated Mukhtar Abbas Naqvi a spokesman for the Bharatiya Janata Party (BJP).
Conservative forces see this step as a triumph of traditional values over secular, liberal attitudes, which they claim are imports from the West. This indicates that conservative players still have a kind of influential voice which even results in law changes.
A “significant step backwards for India” said The UN’s most senior human rights, official, Navi Pillay.
In January 2014, India’s highest court has refused to review the ruling that banned gay sex in the world’s largest democracy, standing firm on a decision that outraged the ruling party and human rights activists around the world. But the petition of the government and seven human right groups did not help at the end. [6. http://www.huffingtonpost.com/2014/01/28/india-gay-ban-upheld-_n_4679413.html] This means a fallback to 1860 and a big loss for the LGBT. The Supreme Court judges argued that the Delhi high court had overstepped its powers with the decision four years ago and only India’s government could have changed the law in 2009. Therefore the Section 377 should be reinstated.
But was this always the position of India, also before the implementation of the Indian Penal Code?
For those who think that homosexuality was somehow an un-Indian mindset will be surprised when you visit one of the many Hindu temples. These Hindu temples are all over the country and were built far back as the fourth century. The walls in those temples were covered with carvings that depict same-sex couples copulating. Indian epics and chronicles are full with acceptances of homosexuality, including one version of the Ramayana, a foundational text of Hinduism written in the fourteenth century that relates to sexual encounter between two women. Kamasutra is even referring directly to gay sex. [4. Ira, Trivedi. (March/April 2014). Foreign Affairs, 21-26.]
At the end I can still see a chance for LGBT that India will again change his mind about homosexuality. Besides the aspect that homosexuality was already “permitted” in the fourth century and it also included in written texts of Hinduism and seemed all in all accepted in the very past. So why shouldn’t it change again? Another aspect is that the leadership of the main opposition party, which most analysts believe is set to secure power in an upcoming election, do not support the repealing of Section 377. [5. http://www.independent.co.uk/news/world/asia/indias-gay-community-scrambling-after-court-decision-recriminalises-homosexuality-9146244.html] The last and perhaps most important aspect is that the current population of India includes 315 million people who are between ten and 24 years. This means that by 2020 India will be the youngest nation in the world, with an average age of 29. According to this fact homosexuality will get a greater acceptance and LBGT people, younger Indians and the ongoing liberalization of Indian sexual mores will lead to it.
Through this new young generation the culture will also change. At the moment the larger part of the population are the older generations which are more likely to stick to their culture and traditions whereas the young generation seems to be opener. Anyhow, the young generation are mainly the ones who protesting for Gay Rights in India. The voice of the younger people is always an important one for a country, since young, open and educated people stand for changes, especially for more rights for minorities. On the basis of the above mentioned statistic, it gets very clear why the voice of India’s young generation is playing such an important role is because they will be future of India. The acceptance of gay rights could result into many things and change opinions on certain points.
Becoming more open towards the topic of sex in general could open an easier dialogue about it. This could also strengthen the women’s right or rights for other minorities and lead to greater tolerance towards foreign things. An opener view on sex could also improve the medical care regarding sexually transmitted diseases, since talking about this topic includes a kind of education, how to prevent those diseases.
Furthermore, the acceptance of gay rights could lead to reduce the birthrate in India. Due to more couples of the same sex, it would control the population and enhance economic stability. I would say that India is doing a step backwards in order to go two steps forward in the future where Gay Rights do exist.