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News & Politics

Published on February 27, 2014

Author: socialscribblers



This article has been written for Techkriti Blog for a Cause Contest.
The topic was:
Write an article on Section 377 of IPC that criminalises Homosexuality in India and tags it as “unnatural”.

For more information visit:

Section 377 - Against the Spirit of Democracy? Section 377 of the Indian Penal Code is considered by many to be a stigma on the Indian democracy, and a violation of the Indian people's rights. This article will review the origin of Section 377, and the consequences of the recent Supreme Court judgement, reversing the decision of the Delhi High Court to read down the law, as well as the dubious arguments in favour of Section 377. Section 377 can be traced back to the British rulers, and was implemented in India, because of the rising anger and disgust at that time against homosexuals in Britain. Thus, it found its

way into the Indian Penal Code in 1861, its purpose being, in Macaulay's words, to "create a class of people, Indian in blood and colour, and European in thoughts, morals and principles". However, homosexuality has been since decriminalised in Britain, as well as many Western countries. Even among Asian countries including Japan and China, homosexuality is no longer an offence. In its decision, the Delhi High Court had read down the law, meaning that it would only apply to minors and non-consensual sex. Criminalizing sexual acts between consenting adults, the court found, would violate the Indian Constitutions guarantees of dignity, equality, and freedom from discrimination. This was because the courts had interpreted the law to criminalize all sexual acts apart from heterosexual vaginal intercourse, thus placing restrictions on private acts of consenting individuals. Thus, Section 377 affects homosexuals as well as heterosexuals, by arguing that only peno-vaginal sex between a man and woman is "legal", as there is a possibility of procreation. Hence, by this definition, oral, anal sex as well as masturbation are "unnatural", as there is an element of carnal and sexual satisfaction, since any penetration of the sexual organ that does not have the possibility of procreation will be against the "order of nature".

Rather than summing up the arguments in favour of retaining Section 377, and those against, I will list the reasons in favour of Section 377 along with a point by point rebuttal against it, one at a time, so both views can be compared simultaneously, with the points fresh in the reader's mind. The Supreme Court's decision rested heavily on two dubious assertions. Firstly, that homosexuals in India are a minuscule population, insufficient in number to constitute a class, therefore they could not be subject to discrimination. However, it must be noted that the judges were unfamiliar with the subject of homosexuality, with Justice Singhvi remarking that he had “never met a gay person”, and Justice Mukhopadhyay asking “What is a bisexual?”. Also, Government figures show that the population of gay people in India is around 2.5 million, which is not inconsiderable. The second major factor in the courts decision, was the aspect of judicial restraint. According to Justice Singhvi, the Parliament was the proper venue to debate this law. This is more than a little ironical, considering how the Indian Supreme Court is renowned for its judicial activism, by forcefully intervening in legislative matters, and that Justice Singhvi himself has defended such activism.

Apart from these two issues, there was the fact that gay men were a high risk group for H.I.V in India, with government reports showing that 7% of the gay population of India have H.I.V. The defendants of Section 377 insisted that the government should not “encourage” homosexuality by decriminalising it. However, it was argued that decriminalization was necessary to insure that gay men could obtain care and treatment without fear of prosecution, and may now feel afraid to seek treatment and counselling. Purushottaman Mulloli, of JACK India, argued that pharmaceutical companies could sell drugs to treat a nonexistent “disease” if it was decriminalised. It should be noted that Mulloli's organisation was of the opinion that AIDS was a “myth”. Also, even before the Delhi High Court's decision in 2009, drugs to treat AIDS were already being sold, and still are being sold, so even accepting this farfetched reasoning, there is still no valid reason to retain Section 377. As expected, the religious petitioners focussed their arguments on the issue of “public morality”, and attempted to conjure images of social and moral chaos in society if Section 377 was not upheld. However, this act was only introduced in India by

the British, and homosexuality was not considered immoral in India before colonialism, with the first case of homosexuality being punished in 1860, by the Portugese colonialists. Homosexuality also finds mention in early Indian literature, was not considered immoral. The court's judgement maintained that the prohibition against “unnatural sex” applied to marital relations and was therefore not discriminatory against homosexuals, although it was shown that Section 377 was used mainly to prosecute gay men. Another argument that has been voiced is that in over 150 years, Section 377 has been used to proscute less than 200 people, and is therefore not discriminatory. This argument defeats itself, since the fact that a law is redundant and useless surely is a reason to remove it, rather than retain it. A major fear among members of the LGBT (Lesbian, Gay, Bisexual, Transgender) community is that Section 377 can be misused to harrass, intimidate and blackmail them, although the ruling does not criminalize homsexuality per se, but only certain acts,mentioned earlier, of both homsexuals and heterosexuals.

According to the final judgement, the case was not restraint by itself, but more that the court's belief that Section 377 did not cause sufficient harm to justify any action of the court. However, the court mentioned that the Parliament was free to strike the law down, if it saw fit to do so. It is heartening to note that many major politicians and political parties have spoken out against the Supreme Court ruling, even at the risk of losing votebanks of orthodox religious groups. -Pratyush Pandey

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