The Section 377 (Chapter XVI) of the Indian Penal Code dating back to 1861 criminalizes all sexual activities that are 'unnatural', including homosexual acts. The Supreme Court of India on 11 December 2013 overturned an earlier judgment of the Delhi high court that corroborates the unnatural sex between consenting adults. This apex court decision has left a trail of movement and debate in India over the relevance of such statute.
Ours is a country where traditional social norms rooted deeply in religious and cultural beliefs. At occasions this provides a perfect pitch for clashes with individual rights. With the passage of time the sexual orientation of people has changed. It's a worldwide phenomenon. Therefore, a law that criminalizes same-sex orientation seems obsolete.
India is a country of varied color and hues. It homes plurality in beliefs, customs and lifestyle. The variety of laws on the basis of religion makes it more complex. The issue of sex has never been discussed in the public domain with the same openness at which it is being discussed today. Still a large section of every religion opts for a stony silence on this burning issue. Similar is the case with our political quarters which does not want to clear their stand.
Homophobia is enshrined in this statute that was written dating back to 1861. In a secular country like India, religious injunctions should have no place when there be matters of legal framework. Furthermore, the lawmakers of early India, the English, were strongly influenced by the moral and religious tenets prevalent in Indian society. It was a time when the agrarian society was attached to their roots, lives among their people and enjoys the local tenets and custom. The lawmakers had to respect the scriptures and the native wisdom they conditioned to keep the social fabric not disturbed.
It is not for nothing that this statute came into existence. The criminality associated with homosexuality touched new heights during Mughal rules in India. The sex culture took the ugliest dimensions with surfacing of concubine, harem and encouragement of effeminizing males for sexual gratification. Homosexuality with children by the rulers and their sycophants was on rise. This act was pure brutality. Male children were used as bonded laborers and sex-slaves as well by the Nizams and land owners. Penetration being the first and foremost act of sexual pleasure and since the male anatomy is not naturally fit for it; these same-sex hungry people usually raped the minors. The English introduced this law to rein such heinous crime.
Except the sexual drive the physical and psychological characteristics involved with a gay or lesbian are not different from the rest of the society and acceptable. In some of the most adherent religions around the globe there are scriptures to affirm this. In the land of Vatsyayana, Khajuraho and Konark, it can be no one's case that age-old Hindu culture was inherently conservative.
Being a gay or lesbian is not a matter of choice for anyone. It is a matter of sexual drive. Rejecting the reality of an offspring who is different and holding him/her hostage to social expectations by means of threat is what this Section 377 symbolizes. At present several countries have granted lesbian, gay, bisexual and transgender citizens equal rights, some even allowing them to set up families and adopt children. At this juncture we must volunteer to think and rethink.
Drafting new laws to encompass this new dimension has now been thrust on the nation's conscience. That's the challenge the Supreme Court has in effect thrown at the Parliament.
Amit K. Sinha is a bilingual investigative journalist who works independently. For the last couple of years he is in Patna writing for many prints and portals.BLOG COMMENTS POWERED BY DISQUS