India on new Horizons:
Section 377
Thomas Maliekel
Symbiosis Law School, Hyderabad.
Prelude
Laws
are an expression of the social, political & economic scenario of a given
territory at a particular time frame. Very often, laws are implemented at the
will of a sovereign who may not be looking out for the welfare of the subjects
but rather impose unnecessary legislation to satiate a religious or political
ambition. There is no scope for these draconian laws in today’s modern and
evolved society as they hamper the right to live freely and enjoy the blessings
life has to offer. Section 377 of the Indian Penal Code, 1860 is an example of
such a draconian law which has no place in modern society. The Section stated-
“Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished
with 1[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.
Explanation. —Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.”[1] This provision made consensual sex between two
homosexual adults a crime punishable by law.
6th
September, 2018 was a landmark day for the Indian Judiciary and LGBTQ (Lesbian,
Gay, Bisexual, Transgender and Queer) rights. The Apex court opined that
Section 377’s application to consensual intercourse between two homosexual
adults as “irrational, indefensible and manifestly arbitrary”[2]. However,
the same provision is said to be in force regarding any sexual relations with a
minor, animal (bestiality) and rape[3].
With this insight, the purpose of this article is to examine what more should
be done to alleviate the plight of the LGBTQ community, how a traditional and
orthodox India and coexist in a symbiotic relationship with the new gender
roles, gender identifications, relationships and how the country and the
authors thoughts will express how the country and community should maintain
impartiality while we forge through unchartered territory with regards to our
society.
The Government and my
sexuality
"Sexpionage" is the active investigation into an individual’s
sexual exploits and sexual orientation by governmental agencies to hold him/her
ransom as releasing of such information may be damaging to the reputation of
the person. A popular example of this is the active investigation of the
Federal Bureau of Investigation into the affairs of Martin Luther King Jr. It
is important to keep in mind that matters regarding morality are subjective and
differ from community to community. An individual engaging in a particular
sexual activity may fear the consequences of the said information being released
as that activity is considered as taboo[4].
The reason why individuals who concealed their homosexual identity in India is
because in the hinterland, it is still considered as taboo. Hence, often
political parties exploit this taboo in order to garner votes. The government
intervention into any sexual activity should only commence as soon as the
element of consent terminates or if consent was never present. This should be
the case whatever the sexual orientation maybe. Side note adultery maybe
considered as a consensual sexual relation and was decriminalized in Joseph
Shine V. Union of India[5], however the author
firmly believes that if an eminent person, especially one in the field of politics
engages in adultery, this matter should be a governmental concern. Same
reasoning as the United States provides is because political figure heads are
looked up to by many and their actions may influence many citizens. This should
hold true in India too.
Matrimony
and same sex couples
One of the core tenets
of marriage according to the Hindu, Christian and Islamic scripture is to
provide a sexual partner to the spouse. Homosexual couples too have sexual
needs that need to be satiated. The sexual requirement itself is full grounds
to allow the right of marriage to same sex couples. An individual being a homosexual does not make
her/him barbaric, cultureless and uncouth as conceived by the orthodox class.
These homosexual people, just like anyone else would want to walk down the
aisle or tie the knot. By not granting marriage rights, these couples are
forced to co-habit in a “live in relationship”. The social acceptance of such a
relationship in any place in India apart from the metros was captured
beautifully in the Bollywood blockbuster, Luka Chuppi. The infamous
police protection to the same sex Haryana couple as they received threats from
their respective community only proves that live in couples lack the protection
of the matrimonial status[6].
Martial status brings a whole host of privileges such as hereditary rights.
Indian legislation has countless marriage Acts, an additional Act conferring legal
status to same sex marriage will only do the country a great deal of good[7].
Regarding parentage, it is well aware that adoption has been the primary mode
of child procurement for these couples and adoption laws have been relaxed to
facilitate this. Where the author would like to assert his stance is in the
matter of using unproven and nascent technology to fuse the two gametes (Haploid
sex cells) of the same sex partners to create an offspring from their DNA. The
science behind this is yet to be successful and leading to a number of
congenialities but even in a successful instance there are a plethora of
matters regarding this as it goes against very core of natural biology. The
preamble of India mentions we are a welfare state hence India is empowered to
promote adoption especially since there is a rampant issue of child abandonment.
It should be stressed that more proven scientific methods such as IVF are not
off the table as they use both male and female gametes hence there is no chance
for any genetic mutations or unseen DNA combinations to occur. But any couple
of India be it heterogenous or homogenous should have a desire to adopt a child
and help eradicate this social issue.
New
ordeals
Sexual Harassment-
workplace harassment has been the social evil which society has been trying to
eradicate through numerous efforts. However, it is standard belief that sexual harassment
is only limited to heterogenous couples. Same sex harassment does occur and the
public should be elucidated about this[8].
India is country that is synonymous with the heinous crime of rape, this
horrendous evil has damaged the ambitions and dreams of numerous women. These
women who could have gone on to live powerful and ambitious lives. Rape also
affects males. One out of every 33 males in the United States have been raped.
With no exact statistic, it is generally believed by experts that the number is
much higher. It is important to note that male rape here is committed by other
males in most cases. The most common example is the rape of a male prisoner by
another male prisoner. It is scientifically proven that the chance of Sexually Transmitted
diseases spreads greater in homosexual males due to the nature of anal sex. In fact,
the landmark judgement, Navtoj Singh V. Union of India[9]
facts were about distribution of condoms to male inmates in Tihar jail.
Now regarding the criticism that inclusion of male in the penal code definition
of rape trivialises rape, there are points to substantiate and counter this. As eloquently said in numerous cinemas, “there
are only two types of people on Earth, Good and bad.” There will always be
elements of a given section looking forward to exploiting a cause for their
personal gain. In a predominantly patriarchal society like India maybe the
inclusion of male rape will get the attention of a larger spectrum of people on
this matter. People who are more likely to commit this horrendous act. However,
keeping in mind the dismal condition of women safety in India, the status quo
should prevail and a priority should be given to dealing with women’s rape as
it occurs in significantly higher numbers. This is not an attack on gender but
a struggle against injustice and evil. These have no gender.
How
to deal with the opposition?
It is important to understand the meaning of institutionalized thinking and rationale. When an individual has been shown a particular school of though since childbirth, with no alternative and no mode to reason, does this make them horrendous people when suddenly proposed with a completely new ideology and they vehemently oppose it? This debate has been an ongoing and interesting one with matters like sexism, racism and homophobia. Indeed, this way of thought may be completely preposterous but the only way to deal with it is by dialogue and discussion and not social media name calling a random and powerless citizen or abusing them. Keep in mind, eminent persons and leaders are not included in this subject as there is a completely different onus on them. It is the common man/ woman that makes the bulwark of society and by education and awareness is how to deal with it. There will definitely be individuals who refute any trace of homosexuality but some people cannot be reasoned with. Education, awareness and elucidation are the three pillars to fight homophobia. Now, the beauty of Indian democracy is at least on paper, we al have free will. These are strictly the authors views but if a heterogenous individual is not comfortable with viewing homosexual contents or vice versa, they shouldn’t be penalised for it by calling out on social media other drastic methods. No one has the right to refute a homosexual person their right to existence. The very essence of democracy is that different factions of society live in harmony with their respective views but with regards to homosexuality in India, we still have not attained this equilibrium and must strive for this balance.
Concluding
remarks
Humans are emotional beings;
we make efforts and do things for the people we love. For a very long-time,
love was a narrow-minded concept. As Indian society progress into the future,
let this nation always strive for the universal truth which is “love thy
neighbour as thy self”. Actions should be implemented and decisions should be
made keeping in mind the changing needs of society but always remembering the
ideals of our ancestors. The law should always have one foot in modernity and
one foot in tradition, through this way we get an ideal body of rules and a
society that is truly free of any prejudice.
The article is the
personal views of the author and not intended to demean any individual or
section of society.
[1] The
Indian Penal Code, No. 13 of 1860, India
Code). § 377
[2] Malika Bhagat, Section 3777
second anniversary: Call for celebration, but miles to go, Hindustan Times, ( 2nd
September 2020, 10:00 PM), https://www.hindustantimes.com/more-lifestyle/section-377-second-anniversary-call-for-celebration-but-miles-to-go/story-Yff3lob0PhvFYoe1dS6WkL.html
[3] Navtoj Singh Johar vs. Union of
India (2016) 7 SCC 485.
[4]
Mini Anthikar Chiiber, A story teller not a
scholar, The Hindu, ( 3rd
September 2020, 10:00 PM), https://www.thehindu.com/life-and-style/author-amish-on-wht-inspired-him-to-write-the-book-legend-of-suheldev/article32530283.ece
[5]
Joseph Shine v. Union of India 2018 SCC OnLine SC 1676
[6] Express News Service, HC tells Mohali SSP to protect lesbian couple¸ The Indian Express, (5th
September 2020, 5:00 PM), https://indianexpress.com/article/cities/chandigarh/hc-tells-mohali-ssp-to-protect-lesbian-couple-6517822/
[7] Poorvi Gupta, Same Sex marriage
gets a push in India, but some in queer community feel other rights require
more urgent attention, Firstpost, (5th
September 2020, 4:00 PM), https://www.firstpost.com/india/same-sex-marriage-gets-a-push-in-india-but-some-in-queer-community-feel-other-rights-require-more-urgent-attention-8592451.html
[8] Samir Shukla, Homosexuality
needs laws for its interactions with non-homosexuals, Times of India ( 4th
September 2020 12:00 PM),
https://timesofindia.indiatimes.com/blogs/science-nomad/homosexuality-needs-new-laws-for-its-interactions-with-non-homosexuals/
[9] Navtoj Singh Johar vs. Union of
India (2016) 7 SCC 485.
I stan! This is something that needs more attention. Keep giving us more insightful content :))
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