Once again we find ourselves debating Section 377 of the Indian Penal Code. In the layman’s terms, we are now arguing whether homosexuality should be legal or illegal. As the Supreme Court hears the case and the centre decides to not take a stand, leaving for the judiciary to decide, let’s know more about the Section and the battle.
Dorothy Parker once said, “Heterosexuality is not normal, it’s just common.” If we say that homosexuality is not normal, then even she can be right, cant she?
Homosexuality in India:
Homosexuality means sexual attraction with a person of the same sex. Heterosexuality means sexual attraction with a person of a different sex. Now that we know what it means, let’s understood how rampant it is. 6 years ago, in 2012, the government of India told the Supreme Court that there were 2.5 million gays in India. That is just gays, we don’t know about lesbians and bisexuals. And not everyone comes out in the open.
India is a homophobic country – when we don’t discuss sex in the open – discussing sex with the same gender is out of the question, isn’t it? One simple thing to understand you are naturally a homo or a heterosexual. If something is not a matter of choice, can it be a crime?
Over the years, many homosexuals have lived among us, heterosexuals, with shame, suppression and guilt. They have been pained, tortured and some have even killed themselves, finding that step an easier one to take. When we accept transgenders, we need to accept the entire LGBT community. They aren’t like that by choice – it is about how they feel, what they feel. Even if it is difficult to digest, it is a certain truth.
The bare text of Section 377 states, “Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.”
The operative words here are, ‘against the order of nature’. Are homosexuals unnatural? Then why are they born that way?
Rig Veda states, ” विकृतिः एवम् प्रकृति” – what seems unnatural is also natural – that is the statement that applies here as well.
And yes, this section was written down in 1861. 157 years ago.
In 1991, AIDS Bhedbhav Virodhi Andolan first began their fight to decriminalise Section 377. Lying idle for more than a decade, the fight was then taken on by Naz Foundation who filed a PIL in 2001. In 2009, the Delhi High Court ruled that the provision was unconstitutional with respect to sex between consenting adults. But the Supreme Court overturned the judgement in 2013 and asked the issue to be decided by the legislature and for the government to give the clarity that was needed in the case.
Then again in February 2016, the Supreme Court agreed to reconsider the judgement and made a five-judge bench to hear the matter. Today, the centre has stated that they leave it to the judiciary to decide what needs to be done. The ball has been passed again.
Several organisations like the Law Commission of India, National Human Rights Commission, several noted people, the public at large – have supported the decriminalisation of Section 377 pertaining to consensual sex between two adults. Even some religious and spiritual organisations have supported the fight. Sri Sri Ravi Shankar once said, “Hinduism has never considered homosexuality a crime,” and he also said, “to brand a person a criminal based on sexual preference would be absurd”.
In August 2017, the historic Right to Privacy judgement also includes the right to sexual privacy.
With some support and some opposition, the old Section 377 is standing trial in the courts of law. After that trial, if the Section is indeed decriminalised, it will stand trial in the society – with a large number of people still discriminating upon sexual preference. While many countries in the world have legalised homosexuality and even homosexual marriages, we really have a long way to go.
Derek Jarman, said, “Understand that sexuality is as wide as the sea. Understand that your morality is not law. Understand that we are you. Understand that if we decide to have sex whether safe, safer, or unsafe, it is our decision and you have no rights in our lovemaking.”
Preview Photo: livemint.com