Published on February 27, 2014
ARTICLE 377 of The Indian Penal Code “If you don’t like something, change it. If you can’t change it, change your Attitude.” Above is quotation by Maya Angelou that applies very aptly to the current Societal Setup than it has ever before. The Current Day situation with respect to Article 377 is very contentious. There are People (People of the LGBT Community) who are affected by recent Supreme Court decision in Suresh Kumar Koushal v. Naz Foundation in which The Supreme Court of India declared Homosexuality as a Crime and also tagged it as Unnatural and in a way this decision has taken from the People of LGBT (Lesbian, Gay, Bi-Sexual and Transgender) Community their Fundamental Rights like that of Privacy, Dignity, Liberty, etc. and on top of that this decision has branded them as Criminals. Before going any more further lets just know that what is Section. 377 of the Indian Penal Code. The First Law Commission chaired by Thomas Babington Macaulay was responsible for The Indian Penal Code which came as a Draft in 1837 and was finally
approved and brought into force on January 1, 1862. That Act had in it Section 377 which said “Unnatural offences.-- 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.” The Indian Penal Code was framed when India was under the Rule of the East India Company and it was framed by an Englishman and history can be attributed to the now contentious Section 377 of the IPC, Years before formation of the United Kingdom, Christianity and Homosexuality clashed, and at that time under the English Law, Anal Sex and Zoophilia were identified as offences punishable by Hanging as a result of The Buggery Act of 1533 pioneered by Henry V1II, and this was what transpired into the Indian Penal Code and that is what still exists even after 150 Years of its formation without the slightest of change in its Original form. The Section 377 of the Indian Penal in layman’s terms lays that If two Person of the same gender indulge in a sexual relationship, that would be punishable with the sentence extending to even Life Imprisonment. This Section of IPC was challenged in Naz Foundation v. National Capital Territory of Delhi in the Delhi High Court in 2009 and then this Case the Delhi High Court held Section 377 of IPC as Unconstitutional and struck it down and this Decision of Delhi High Court was challenged in The Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation and in 2013 The Supreme Court of India upheld the validity of Section 377 of IPC thus over-ruling the Decision of the Delhi High Court and thus criminalized sexual activities that are against the order of nature and the Supreme Court said that it should be left to the Parliament to strike down the Provision and thus legalize Homosexuality but on the same page, In Lily Thomas v. Union of India the Supreme Court declared Section 8(4) of Representation of Peoples Act, 1951 as being beyond the Legislative competence of Parliament and thus it took a leap in Decriminalization of Politics, though it was a very great and
commendable effort but the question is not that, the real question is that in that instance, Supreme Court took its own cognizance and repealed a Section of an Act and in this Case it had to do just the same thing, as the Delhi High Court had earlier struck down Section 377 of IPC and only confirmation to the said decision was needed in the Supreme Court but the Supreme Court hesitated to take a brave step forward and left the tough task to the Parliament of India thus transferring the Burden. Now as far as the Question of Homosexuality being Un-Natural is concerned, the word un-natural in itself is very vague as Oxford Dictionary defines it as “contrary to the ordinary course of nature” so what seems pretty natural to me, may not be natural to you, so if someone feels to be Gay, he has the right and also the choice to be who they want to be, its not un-natural just because the majority of the population does not feel like being Gay, if I feel something, I have the Fundamental Right to chase that feeling as long as it does not infringe the Fundamental Right of others, So if me and my Partner are Gay, then it very well does not enter into the ambit of others and hence I should be allowed to do it and not being labeled as a criminal for it, Just because by being Gay one would have to adopt Child does not mean that its unnatural. One of the oldest and most sacred and pious text of India, the Rig-Veda says “Urkriti Evam Prakriti” which means that what seems Unnatural is also natural, so this very well goes the conclusion as that being Homosexual is normal and not un-natural because that is the way one feels and that has to be understood by the majority of the People, its not that what they do is the only Right Way of doing things. Vishwa Hindu Parishad recently after the Verdict of Supreme Court said that “Homosexuality is against Indian Culture” but they should be enlightened with the fact that we Indians take pride in our rich cultural heritage and the Hindu Temples that were built around the Sixth Century B.C. have on their walls images of Gods, Goddesses, Demons , etc. and in those images on the walls of the Ancient Hindu Temples, one can find erotic images which include Elephants seen copulating with Tigers, Monkeys molesting Women while the Male’s
mating with Asses, and in the Caves of Khajuraho, one can very evidently find images of Women erotically embracing other Women and the Males showing their Genitals to each other, these images cannot just be considered as perverted fantasies as this was what our Ancestors practiced and if homosexuality existed somewhere around 6th Century, then why are we scared enough to adopt it for the better of the People who are Homosexuals and many Historians concur with it as well so, its time to tell Institutions like the Vishwa Hindu Parishad the real side of things and get them out of their El-Dorado and the time has also come to tell People like Baba Ramdev who say “I can cure Homosexuality by Yoga and it is a bad addiction” that it was time for a change and also the time to think for the better of the Society and not just think what concerns the majority. Shaashwat Singh TECH58830
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