A Comparitive Analysis of Homosexuality Laws in South Asia

Abstract

The old perception of marriage was that it consisted of a “bread winner (the husband)” and a “home maker (the wife)” but this perception changed when women started working and became “bread winners” along with their male counterparts. Even a few husbands decided to become “homemakers”. The question that arose in same-sex marriage was who was to be the “bread winner” and who was to be the “homemaker”? It is because of such questions posed by society that gay people do not get married. In an article, that was published a few months ago, it talked about two lesbians who lived together but they never let anyone know that they were lesbians. The society thought that they were sisters and the two never said anything about it. Societal pressure is a reason why same-sex marriages do not occur. Religion still has a profound influence in the Indian psyche. In both the Dharmic and Abrahamic traditions, the role of sexual intercourse is that of procreation and thus fulfilling the will of God. The Indian public and many of its public figures still have an unfavorable opinion on the nature of sexual acts between homosexuals, it is also important to note that the legal framework of India, the law of the land, does not guarantee the rights of all citizens regardless of their sexual orientation, non penile-vaginal intercourse is yet to be legalized. The way the society thinks should change but that may take a while which was shown in the judgment of Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. Homosexuality has been frowned upon in India for much of its history, and violence against homosexuals is not uncommon. Until recently, such persons would not publicly admit to their sexual orientation. Article 15(1) of the Indian Constitution provides for Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. The expression ‘discriminate against’ in Article 15(1), according to the Oxford Dictionary, means “to make an adverse distinction with regard to; to distinguish unfavorably from others”. Discrimination includes a component of prejudice and it is in that sense that the expression has to be understood. Article 15 (1) has a closed list of five specified grounds: religion, race, caste, sex and place of birth. The category of sex includes sexual orientation which was declared in the Suresh Kumar Koushal and Anr. v. NAZ Foundation and Ors. judgment. The Supreme Court held that “the underlying purpose against sex discrimination is to prevent differential treatment for the reasons of non conformity with normal or natural sexual or gender roles. Sex relations are intricately tied to gender stereotypes. Accordingly discrimination on the ground of sex necessarily includes discrimination on the basis of sexual orientation. Like gender discrimination, discrimination on the basis of sexual orientation is directed against an immutable and core characteristic of human personality.” Thus, the Supreme Court does not criminalize a particular identity under Section 377 of the Indian Penal Code but it criminalizes certain acts and this paper will deal with this intricate and pertinent issue while also taking reference from other South Asian countries like Bhutan and Nepal.