Vistiary: SECTION 377 - THE PAST AND THE PRESENT

Vistiary: SECTION 377 - THE PAST AND THE PRESENT: On Thursday 6 th 2018, there was a great revolution in the Indian System. There was a huge uproar, throughout the country, of people sup...

SECTION 377 - THE PAST AND THE PRESENT

On September 6^th 2018, there was a great revolution in the Indian System. There was a huge uproar, throughout the country, of people supporting the scrapping of Section 377 of Indian Penal Code.  It brought a vibrant colour to the society and people have started adapting to the circumstances.

Most of us, generally consider Section 377 to be an act that just criminalises homosexuality. However, there are more aspects to it. ‘Section 377’ of the IPC criminalises all the carnal intercourse against the order of nature. This means that all kind of acts like oral sex, anal sex, sex with the same gender or with different species of animals is a crime. It was introduced in India during the British rule in 1862. But it has continued its ways into the twenty first century, branding people with a criminal tag due to their sexual preferences.

The reading down of Section 377 appears to be imminent. However, there were lots of difficulties in bringing upon this change. The section had already been brought down by the Delhi High Court in 2009. The order was in response to a writ petition, Navtej  Johar  vs. Union of India, filed in 2016 under Article 32 by five LGBTQ individuals who argued that their fundamental rights have been infringed upon by Section 377.

The five-judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra had reserved the verdict on July 17,2018 on the conclusion of arguments.

The tone and tenor of the hearing of the matter on July 17 - the day the verdict was reserved - saw the court telling that it was duty-bound to strike down a law that is in conflict with the fundamental rights and not to leave it to majoritarian government to address it.

Now, let’s see why the Section 377 is not against the nature of God. Firstly, being a homosexual is not a choice. It is not up to an individual to choose with whom he/she wishes to have sexual attractions. Secondly, homosexuality is not a disease. There are lots of people who still consider ‘homosexuality’ as a disease which can be cured with treatment, which is a wrong notion. Even, the Indian Psychiatric society has also recently supported the fact that homosexuality is not a disease or choice. Various biological studies also show that homosexuality may be due to genetic and environmental factors. If the nature is itself responsible for such traits to occur on human beings, then how does it be against the nature?

Our History shows that it was tolerant and had a liberal attitude towards homosexuality from the ancient period. There are many instances to prove this. For e.g. , in the temples of Khajuraho, there are images of women erotically arousing each other women and men pleasing each other. The famous Kamasutra has references of homosexuality. Similarly, the Mahabharatha displays a transgender warrior named Shikhandini . Ancient Indian texts, inscriptions and paintings on temple walls, though not much approving of homosexuality, acknowledge its existence in those days. The Islamic territories like the current day Iran and Iraq had an open attitude towards homosexuality in the 16^th century. Yet, people often term homosexuality as against their religious scriptures and as a sin. Whereas, homosexuality isn’t a sin as long as the adults engaged in sexual activities have each other’s consent.

The section 377 of Indian Penal Code states that: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with 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 section also has various implications for heterosexuals. According to the meaning of the section if a man and a woman engage in sexual activities which are against the order of nature they will be punished with imprisonment for life and/or fines. This means that anal sex and oral sex are against the order of nature as they do not contribute to the process of reproduction. This is a really old law introduced during the British rule but times have changed, the concept of sex is no more as much as of a taboo. 

India has a long history of tolerance and compassion towards every section of society as is evident with multi ethnic and multi religious society. Separating homosexuals just for their sexual preferences is anti-nature and anti-Indian. 

In the 21^st century, the laws needs to be progressive and such laws which infringes the sexual choices of an individual has to be scraped down. The society should have broader outlook and accept homosexuals rather than torturing and discriminating them. Their fundamental rights are being violated. Just because homosexuality is not widely practised in India does not mean it is not normal. Just because it is not common does not mean it should be condemned. When people actually put themselves in theirs shoe and realise the hardships they go through from childhood, the way they are treated in the society as criminals or untouchables, how their desires are crushed upon, only then will we be able to understand their position and work for them.