DILUTION OF SECTION 377: AN IMPACT ON THE INDIAN SOCIETY
The evidence of homosexuality can be traced back from around 1500 BC in India. Kama sutra which is termed as world’s first scripture on sex has quoted in a minutiae aspect on the homosexuality where the sexuality is based on pleasure and fertility. The historical evidence of homosexuality is also evident from the medieval Muslim history. In spite of the absence of a codified law during this era, the amount of liberty that would have been existed at the period has to be presumed as highly noninterventionist of the fact that the first text on the subject matter of sex was written at that time and the sexual depiction of statutes in temples of Khajuraho and Konark adds solidarity to this view. As a matter of fact, it makes us ponder whether we are following the right culture of Indian society which has to be currently considered as conventional and non-liberal in a comparative study with the western and oriental countries.
The situation became severe from the advent of Aryan Invasion and Vedic Brahmanism dating to 1500 B.C. From the observation of historical codes such as Manusmrithi illustrates that punishments were served upon those who were involved in the acts of “deviant” sex. It has quoted that, “If a man has shed his semen in non-human females, in a man, in a menstruating woman, in something other than a vagina, or in water, he should carry out the ‘heating’ vow.” Which is involved of applying of the cow’s urine and dung but it was not meant only for homosexuals but also for “diverted” heterosexuals. As it were the days of male domination, caste system and ‘untouchability’ milder penalties were given to the persons of upper caste and males whereas the females involved in lesbianism was given harsher punishments. Later India was invaded by the Persians and in the following periods both sexual systems had been coexisting even though there were fluctuations in comparative suppression and freedom. But from the period of the British Colonialism, the destruction of metaphors of homosexual and sexual expression became more orderly and blatant. The Victorian values which have to be considered as homophobic remarked the display of explicit sexual images as 'pornographic and evil'. Since the time of Colonial expansion the western outlook had been strongly influenced by hypothesis about sexuality for the process of purely reproduction without giving emphasis on the elements of love and pleasure. These values and approach were in turn stamped in the interpretation of sexual activity among the colonial people which is evident from their remarks on uncommon sexual practices marked as unnatural. The Indian society, consciously or unintentionally accepted the Western moral and psychological idea of sexuality being 'pathological' rather than the natural expression of desire, which once used to be part of Indian culture.
The provision of criminalization of same-sex acts can be found in the Section 377 of the Indian Penal Code (IPC) which was drafted in 1860 by Lord Macaulay as a part of the colonial project of regulating and controlling the British and Indian origin subjects.
Section 377 of IPC reads, "of unnatural offences: Who ever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine." Explanation: Penetration is sufficient to constitute carnal intercourse necessary of the offence described in this section" If the process of sex is considered only for the purpose of reproduction as mentioned in the “Order of Nature”, then no couple could indulge in the activity of cunnilingus or fellatio as such activities also should have been marked as unnatural by the so called learned, educated, homophobic, prejudiced British legislators.
This section raises several questions like what is natural and what is the order of nature? One could answer these questions (in a socially arrogant way) stating that, “The order of nature is to have sex for the sole purpose of reproduction which was the answer derived from the mind of a sect of homophobic people powerful enough to influence the majority of section by way of legislation, laws and moral policing during the 19th century”. This law was enacted by the British and we Indians, after almost 150 years of passing the legislation are still blindly clinging on to this notion whereby a homosexual is seen as an abnormal person. During these 150 years, the world has witnessed revolutions, inventions and discoveries in various fields such as science and technology, nature, resources, machineries as well as in the human’s life in the elements of individuality, freedom, perception and thinking. The world has viewed two world wars, man has landed on the moon, television, telephone, pager and presently mobile phones and e-mails are part of a common mans life, The farthest distances can be travelled in no time, new medicines and vaccines have been invented as well as new forms of ailments are also visited on human’s body and in the context of our subject matter, homosexuality was ceased to be considered as an abnormal behavior in 1974 and was detached from the classification of mental disorder much to the relief of the free thinkers as well as the homosexuals. The last century observed major changes in the perception of homosexuality. It was de-criminalized in various countries. South Africa, in 1994 became the first nation to constitutionally preserve rights of lesbians and gays. Norway, Spain, Sweden, France, Holland, Slovenia, Luxembourg, Denmark, Canada, and New Zealand also possess similar provisions. In 1996, the US Supreme Court ordered that no state could pass laws that discriminated against homosexuals.
Recent studies in the animal kingdom shows that even various species of birds, mammals, insects, fish etc. indulges in homosexuality in the acts of sex, courtship, affection, pair bonding, or parenting as noted in researcher and author Bruce Bagemihl's 1999 book; Biological Exuberance: Animal Homosexuality and Natural Diversity. Petter Bockman, the academic adviser for the “Against Nature” (an exhibition on homosexuality in animals made by the Natural History Museum, University of Oslo, Norway) have stated that, "No species has been found in which homosexual behavior has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins and aphids. Moreover, a part of the animal kingdom is hermaphroditic, truly bisexual. For them, homosexuality is not an issue." These discoveries add more fuel to the question of “What is the order of the Nature” as inscribed in Section 377.
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Article 14 of our Constitution provides equality before law for all the Indian Nationals, Article 15 states that there shall be no discrimination based on sex and Article 21 prohibits the state from interfering with the private personal activities and personal liberty of the individual. But the criminalization of sexual relationship between two persons of same sex under Section 377 is violating these fundamental rights.
The United Nations, during the meeting of the UN Human Rights Council in Geneva insisted on India to decriminalize homosexuality stating that it would help the fight against HIV/AIDS by allowing intervention programs like the successful ones which had been conducted in China and Brazil. Dr Denis Broun, India’s Country Coordinator of Joint United Nations Programme on HIV and AIDS, or UNAIDS (The main advocate for accelerated, comprehensive and coordinated global action on the HIV epidemic) stated on the Indian system that, “criminalization of people most at risk of HIV infection may increase stigma and discrimination, ultimately fuelling the Aids epidemic.” Attempt to provide condoms to the inmates of the Tihaar jail in order to curb the epidemic of HIV/ AIDS was objected by the authorities stating that such an activity would be equal to promoting homosexuality which is a criminal offence according to the IPC.“Human Rights Watch”, an international non-governmental organization that conducts research and advocacy on human rights has said that the law has been used to harass HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other homosexual groups. The People's Union for Civil Liberties, a prominent civil rights organization in India has published two reports of the rights violations faced by sexual minorities and especially the transsexuals in India jargoned as hijras and kothis. The film “fire” released in 1996 was received by violent protests from the right-wing Hindu groups and the Maharashtra Chief Minister supported the acts of vandalism, saying, "I congratulate them for what they have done. The film's theme is alien to our culture. In 2004, the Indian government opposed a legal petition that sought after legalizing homosexuality by way of a petition in the high court of Delhi was dismissed. The government argued that the abolition of the law (Enacted by British in 1860) dealing with the term of "unnatural sex acts" could effect in an increase in aberrant behavior.
In the revolutionary judgment passed on 2 Jul 2009, the Delhi High Court overturned the section enacted by the British 150 years ago by legalizing consensual homosexual activities between adults. The high court stated that the quintessence of the section is against the fundamental right of the Indian citizens. The bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law unless it is amended. After the passing of this judgment, India becomes the 127th country to take the shame out of the subject of homosexuality. The court declared that Section 377 IPC, where it ``criminalized consensual sexual acts of adults in private'', violated the fundamental rights of equality provided in Article 14, personal liberty guaranteed under Article 21 and prohibition of discrimination stated in Article 15 of the constitution.
Observing the Indian socio-cultural and political situation, thinking and prejudices under which even a well educated citizen would state that homosexuality is against our culture and tradition, one wonders that about which culture is such person talking about? Is it the culture imposed upon us by the British, who invaded us, plundered our resources and ruled us for nearly a century or is it the culture where touching or even seeing a person from the low caste could result in the torture of that poor soul during the time of king Manu or the real Indian culture where the sex was considered to be an act of love, mutual bonding and pleasure, where the temples were sculptured with the statutes of sexual poses celebrating the love and passion which is inculcated in every human being from the time he is born and which is naturally imbibed. The concerned law enacted the British in our country was the product of the homophobic colonial view in the 19th century and it is high time that we change the age old laws enacted in our land by the foreigners with the change in time, analyzing the scientific perception and advocating the liberty and freedom of the citizens. At least this generation of people should desire that our children should not feel awkward when they meet a homosexual or someone within their relationship circle tells them that he/ she is a gay/ lesbian and outcast that person as abnormal.
“Prohibition cannot solve any problem, only education can”
- Bagemihl, Bruce: Biological Exuberance: Animal Homosexuality and Natural Diversity.
- News-medical.net (2006)
- http://timesofindia.indiatimes.com/india/India-decriminalises-gay sex/articleshow/4726608.cms
- http://timesofindia.indiatimes.com/india/Ancient-India-didnt-think-homosexuality-was-against nature/articleshow/4708206.cms
- India: Repeal Colonial-Era Sodomy Law, report from Human Rights Watch
- Jain, Madhu; Raval, Sheela (1998-12-21), "Ire over Fire", India Today, http://www.india-today.com/itoday/21121998/cinema.html
- Joseph, Sherry: The Law and Homosexuality in India.p.150-154.