The Supreme Court in its verdict on Section 377 of the Indian Penal Code (IPC) on Thursday has opined on sexual orientation, accepting definitions that have come from the LGBTQIA community itself.
The judgment says that there is no constitutional sanction against fluidity, across the spectrum of sexuality. Reacting to the verdict, the Rashtriya Swayamsevak Sangh (RSS) has said that Indian society does not accept or support same-sex marriages and relationships.
To clarify, the RSS spokesperson said that they do not support the criminalisation of homosexuality, but stressed that same-sex relations should be treated at a social and psychological level. RSS' remarks may be an indicator that the Supreme Court’s progressive decision has a long march ahead till broader acceptance.
The Supreme Court judgment looks at not just sexual orientation but love between people for the same gender.
“It is worth noting that scientific study has, by way of keen analysis, arrived at the conclusion as regards the individual‘s inherent orientation. Apart from orientation, as stated earlier, there can be situations which influence the emotional behaviour of an individual to seek intimacy in the same gender that may bring two persons together in a biological pattern. It has to be treated as consensual activity and reflective of consensual choice,” the judgment says.
In the judgment delivered by a constitutional bench led by Chief Justice of India (CJI) Dipak Misra, the court has also ventured into the definition of sexual orientation which is not otherwise found in Indian law.
The section on sexual orientation has delved into the definitions for Lesbian, Gay, Bisexual, Transgender, Intersex and Queers which make up the LGBTQIA community (A stands for ‘Allies’, Q is used both for ‘Queer’ and ‘Questioning’).
The top court has pointed out that a majoritarian societal perception holds homosexuality (as a generic term for LGBT) and bisexuality as unnatural and heterosexual as the natural order. The SC has said that homosexuality or bisexuality is “as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity. That apart, on occasions, due to a sense of mutuality of release of passion, two adults may agree to express themselves in a different sexual behaviour which may include both the genders. To this, one can attribute a bisexual orientation which does not follow the rigidity but allows room for flexibility.”
READ MORE: Explained: What Is Section 377 Of The IPC
In the judgment, the court has referred to various decisions rendered by courts across the world, opinions from international jurists and the result of discussions amongst global rights groups. The definition accepted by the court was given by a former Australian High Court judge, Michael Kirby.
Contrary to the RSS’ reaction, the Supreme Court has relied on available psychological studies, including by the American Psychological Assocation, which has said that “homosexuality a matter of individual choice. Research suggests that the homosexual orientation is in place very early in the life cycle, possibly even before birth. It is found in about ten percent of the population, a figure which is surprisingly constant across cultures, irrespective of the different moral values and standards of a particular culture. Contrary to what some imply, the incidence of homosexuality in a population does not appear to change with new moral codes or social mores.”
The study further says that “Research findings suggest that efforts to repair homosexuals are nothing more than social prejudice garbed in psychological accouterments.” This is particularly important since doctors and several organisations have claimed cures for homosexuality. At a non-urban level, there are also forms of indigenous and alternate psychiatry that have made similar claims.