Section 377: Fight For Freedom Of Right To Life & Choice
Today, as the Apex Court of India begins to hear petitions of the homosexual community to grant equal right to choice and abolish Section 377 of the Indian Penal Code, let us take a brief look about Homosexuality in India.
1) What is Homosexuality?
A homosexual is a person who is attracted to a person of the same sex. It accounts for the LGBTQ community i.e. Lesbians, Gays, Bisexuals, Transgender and the Queers.
2) What is Section 377 of the Indian Penal Code (IPC) all about?
Section 377 of the IPC is an age-old law of that deals with Homosexuality and was introduced in the early 1860s during the colonial British Raj. It declares sexual relationships with a person of the same gender as a Crime.
Section 377 states, “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.”
In simple terms, gay partners entering into sexual activities are considered “unnatural”. Even if the act is performed with consent of the partners, it is illegal and they can face punishment under the law. Additionally, it also has some effects on heterosexuals as it considers consensual oral and anal sex in private to be unnatural and punishable for life under Section 377
3) When did the fight begin?
Homosexuals have been a part of the Indian society since long. Even in our mythological texts, there are signs of homosexual relationships. However, the actual fight began for this sexual minority community in 2009.
In July 2009, the High Court of Delhi established that Section 377 violates the Fundamental Rights of the Constitution and thus decriminalized homosexuality. However, this was not accepted by many religious groups and they appealed to the Supreme Court to hear the matter.
The Supreme Court of India in 2013 quashed the orders of the Delhi High Court and criminalized homosexuality once again, saying that it is the duty of the Indian Parliament to repeal any law. This means that gay sex between consenting partners (adults) in private, is an offence in the world’s largest democracy.
However, after a lot of protests and arguments/criticisms by the LGBTQ community and human right activists, after two long years, the Apex Court decided to re-visit and re-examine its own judgment. The final call on this section is yet be decided.
4) Why should Section 377 be repealed?
In recent times, we have seen massive outrage by people fighting against the Government and the Judiciary to abolish the incorporated section and give homosexuals their due right and status. Here’s why the law should be repealed.
a) Contradictions of the basic Fundamentals Rights: According to Indian Constitution, every citizen of India has equal right to Freedom of Life, Freedom of Expression, and Equality before the Law, Right to freedom against discrimination and the newly introduced Right to Privacy. All these fundamentals are mentioned in our Constitution in various articles and each citizen of the country is entitled to it. Isn’t choosing your own sexual partner a freedom given by the Constitution? Right to choice and decision has to be upheld.
b) Injustice Against Homosexuals: Homosexuals are a community that has been troubled for years now. The society doesn’t accept them as normal human beings because they have a sexual preference that is against the so called norm.
A number of people from the LGBTQ community have come out in the open, speaking about harassment and punishments they have to face by the police without any fault of theirs. They are subjected to violence and torture just because they belong to a certain group whose sexual orientation is different from others
c) They are no longer a Minority: Yes, we must understand that these people are as much part as our society as we are. They no longer remain a minority. After rallies and protests, many people from various walks of life have come forward and proudly accepted their sexuality. It is no longer about a small group of people constantly struggling for their rights, to be accepted as they are, the numbers have increased significantly.
d) Western countries have accepted their existence: It is always said, India is modernizing through its influence from the West. But why take a step back now? Nations like the UK, Canada, and New Zealand have understood their importance and decriminalized homosexuality. Moving a step forward, they have also legally identified sex same marriages.
e) Love and Sex are not an offence: It is said, ‘You do not choose who you love and who loves you back.’ Then, ‘Why is it expected from the LGBTQ community to restrict them from exploring themselves and to experience the purest feeling of love?’ ‘Would you like someone getting into your bedroom and telling you what to do and what not to?’ Right and Wrong, Good or Bad, these are subjective terms and we are no one to decide what other’s should do and how they should do it, unless it is harming another life.
Homosexuality is often considered as a Disease, something that needs a cure. But, it is high time we realize that it is not a disease that can spread. One does not acquire from the surroundings, “One is Born with it”. There are also arguments that it is against Indian Religion and Culture, but haven’t we all seen old sculptures carved out on caves that depict sexual relationships between the same genders.
We live in the 21st century, where we talk about Being Yourself, where we encourage children to understand their self-worth, but we fail to recognize someone’s personal sexual preferences. India is a Secular Democracy, and we have always strived for co-existence and compassion. It is high time us to broaden our horizons and think from a larger perspective. For once, put yourself in their shoes, ‘How would you feel if you were disowned by your country merely because you are in love with a person from the same sex?’
Homosexuality is a Natural phenomenon and as much a Gift from God. Shouldn’t God’s children be treated equally and given a chance to live in peace and harmony?
Though the decision is yet to be made, the recent judgments’ of Right to Privacy and Legalizing Live-In relationships have imparted more faith in the Indian Judiciary and the Parliament. Let us all stand strong and hope that the decision is taken keeping the mind the larger interest of society.
‘Hum HonGAY Kaamyaab’!
Megha Thadani Is An Intern With SheThePeople.TV