This article was written by Toshan Chandrakar a student of HNLU.
Rights are an inherent part of a man’s live. They are inalienable. Every human being walking on this earth is entitled with the basic necessities and requirements to live their lives with the maximum dignity and peace. Some rights are believed to belong to [i]everyone. These sets of rights are called human rights. To describe some of the human rights are right to life, rights to health, right to freedom of speech and expression, right against exploitation of any kind etc. Rights are present in the nature because the nature has provided man with a brain to think and when a man thinks, he develops interests. Now interests may differ from person to person, community to community about one’s political, physical, sexual, business etc. The old saying of ‘Live and let live’ is the key to respect each other’s rights but somewhere when it comes to recognition of rights of some “special” communities, we fail to do so.
The Law and the Meaning:
Section 377 of the IPC or the Indian Penal Code, which was introduced during the British rule in India 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 term which may extend to ten years, and shall also be liable to fine.”
On 2 July 2009, in Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court held that provision to be unconstitutional with respect to sex between consenting adults, but the Supreme Court of India overturned that ruling on 11 December 2013. The Supreme Court upheld Section 377, banning ‘unnatural’ sex, despite the High Court in Delhi deeming it unconstitutional. The section is a colonial law which bans sex ‘against the order of nature’, which means anything other than penile-vaginal sex. It technically means that oral sex would make you go into prison for ten years or more, and anything other than penile-vaginal is against the order of nature because it is not reproductive. In its judgment the Supreme Court stated
“We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors… Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”[ii]
On 2 February 2016, however, the Supreme Court agreed to reconsider its judgment, stating it would refer petitions to abolish Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue.[iii]
The definition of Section 377 has always been a matter of great controversy as it lacks accuracy and hence can be interpreted in various forms in the name of “unnatural sex”. It is an irony that India, which has not recognized marital rape under law, harps on about unnatural sex. The second thing to discuss here is the definition of the term “unnatural” itself. Initially, only anal sex was interpreted as unnatural under section 377, but as India progressed with its technological front, the legal system pulled back to add oral sex and also, penile penetration of orifices. The reasoning is stated as to be “against the order of nature”.
A new perspective:
In September 2006, Nobel Laureate Amartya Sen, acclaimed writer Vikram Seth and other prominent Indians publicly demanded the repeal of section 377 of the IPC.[iv] The open letter demanded that “In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.” On 30 June 2008, Indian Labour Minister Oscar Fernandes backed calls for decriminalisation of consensual gay sex, and Prime Minister Manmohan Singh called for greater tolerance towards homosexuals.
Many others like Anbumani Ramadoss(Member of Parliament) and Sri Sri Ravi Sankar, a prominent Hindu spiritual leader also have condemned Section 377.
In December 2015 Member of Parliament Shashi Tharoor introduced the bill for decriminalization of section 377, but the bill was rejected by the ruling party.
The presence of homosexuality is not new but has been in existence since ancient times. After the recognition of the rights of the transgender community, it seems only fair that people of the LGBT communities get availed all the basic human rights.
Religion has played a decisive role in this matter. All the religions have stood united against homosexuality. Baba Ramdev, India’s well known Yog Guru stated that homosexuality was a disease and he could cure it through yoga. Every religion seems to be homophobic and has found unity in standing against availing the rights to the homosexuals and calling it against ‘dharma’ and Indian Culture. Many Hindu and Muslim leaders welcomed the Supreme Court judgement of 2013 and called the homosexuals as retarded and criminals who should be put behind bars for committing such ‘heinous’ crimes. It is an irony that these same people who are proud homophobics tend to decline any such thing as Marital Rape. For them, Marital Rape is not heinous at all.
However, the gay rights organisations still argue that the verdict of 2013 was contrary to well-settled legal principles of the constitution, and that proscribing certain sexual acts between consenting adults in private demeaned and impaired the dignity of all individuals under Article 14, 15 and 21, irrespective of sexual orientation.
While many countries across the globe such as South Africa, USA, Canada, Denmark, Norway, Sweden have decriminalized homosexuality and given the LGBT community their share of the cake, India should also try taking a leaf out of their books and recognize their rights and welcome the community with utmost dignity. One can build a smart city all they want but without a just and fair mind, it would be all for nothing. Recognozing the third gender was a huge step for India but we have miles to go in the way of becoming a developed nation and only when we recognize and provide equal rights for every Man, Woman and child, we can think of achieving that target. A developed nation. A smart nation.
[i] Shyamantha, Asokan (11 December 2013). “India’s Supreme Court turns the clock back with gay sex ban”. Reuters
[ii] Suresh Kumar Koushal and others v. Naz foundation and others
[iii] Rajagopal, Krishnadas (2 January2016). “Supreme Court refers plea against section 377 to five judge bench”. The Hindu.
[iv] Ramesh, Randeep (18 September, 2006). “India’s Literary Elite Call for Anti Gay Law to be Scrapped”. The Guardian(London).