– Aditi Sharma*
As the title suggested my topic is just the same. Dilemma means a situation where each of two alternative courses is undesirable.
My dilemma is on section 377 of Indian Penal Code Chapter XVI ,section 377 of the Indian PenalCode is a piece of Legislation in India introduced during British rulethat criminalises sexual activities”against the order of nature “. On 2nd July 2009 this section was laid down to decriminalise same sex behaviour among consentingadults in a historic judgement by the High Court of Delhi.
After getting into the notes first of all we should know what is under 377? What exactly it talks about ?
Section 377 of INDIAN PENAL CODE1 :
The ambit of section 377, which was basically made to criminalise and prevent homosexuality and association – sodomy in particular , extends to any such union involving Penal insertion. Thus even consensual heterosexual acts such as fellatio and digital penetration may be punishable offence.
While debating on any topic we should know public perception as well as the history of the particular. HOMOSEXUALITYis generally considered a taboo subject by both Indian civil society and the Government. Even local public discussion interdicts about the homosexuality. It is by fact that in india the word “sexuality ” is never discussed openely. In recent years attitude towards homosexuality have shifted slightly. This is result ofIndian news media that more depictions and discussions are made by them . and by the bollywood which is kindly followed by the public in a country like India. On 2nd July 2009, the DelhiHigh Court2 decriminalised homosexualintercourse between consenting adults, throughout India , where 377 of India Penal Code was adjudged to violate thefundamental right to equality as guaranteed by the Constitution of India. Several organisations like the NAZ foundation [ India] trust , the NationalAIDS Control Organization , Law Commission of India , Union Health Ministry ,National Human Right Commission and the Planning Commission of India had either implicitly or explicitly come out in support of decriminalizing homosexuality in India and pushed for tolerance and socialequality for LESBIAN, GAY, BISEXUAL AND TRANSGENDER PEOPLE.
ROLE OF RELIGION :
Religion has played a role in shaping Indian customs and traditions, Hinduism, the largestreligion is India has taken various positions, ranging from positive to neutralor antagonistic.
RIGVEDA3 one of the four canonicalsacred texts of Hinduism says VIKRUTI EVAM PRAKRITI [what seems unnatural is also natural] historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history and that homosexuals were notnecessarily considered inferior anyways.
The ARTHASASTRA4 an ancient Indian treatise on statecraft, mention a widevariety ofnon-vaginal sexualpractices which , whether preformed with a man or a woman , were sought to be punished with the lowest grade of fine. While homosexual intercourse was not sanctioned , it was treated as a very minor offence , and several kinds of heterosexual intercourse were punished more severely.
The MANUSMRITI , which lists the older codes of conduct that were proposed to be followed by a hindu , does include mention of homosexualpractices but it was not always well accepted .there were punishments prescribed for homosexual behaviour.
For instance :
The verse reffering to sexual relation between a virgin woman and an old woman :
“awoman who pollutes the damsel(virgin) shallinstantly have(her head) shaved or two fingers cut off , and be made to ride on donkey (through the town).”5
These provisions,quoted out of context , seem against lesbianism , but in fact they are concerned not with the gender of the partners but with the virginity that rendered a young woman unworthy of marriage.
While homosexualintercourse between men was sought to be censured by a prescription of a bath with one’s clothes on, and a penance of ” eating the five products of the cow and keeping a one night fast.” The penance beinga replacementof thehomosexual intercourseresulting in a loss of caste.
The classicalIndian text KAMASUTRA6 deals without ambiguity or hypocrisy with allaspects of sexual life – including marriage, adultery, prostitution group sex, sadomasochism,male and female homosexuality and transvestism.
LGBT CULTURE IN INDIAN
Sincedecriminalisation ofhomosexuality in India therehas been a vibrant gay nightlife in cites such as MUMBAI, DELHI, HYDERABAD, KOLKATTA and BANGALORE. The reports of harassment of homosexualindividuals and gathering by the policehave seen a gradual decline since 2004.
In 2005, Prince Manvendra Singh Gohilwho hails from Rajpipla in the Gujrat , publicly came out as gay . He was quickly anointed by the Indian and the world media as first openly gay royal7. He was disinherited as an immediate reaction by the royal family, though they eventually reconciled.He was appeared on the ORPAH WINFREY show , and on BBC three’s Undercover Princes.
In 2008, Zoltan Parag, a competitor at the Mr. Gay International contest said that he was apprehensive about returningto India.He said, ” Indian media has exposed me so much that now when I call my friends back home their parents do not let them talk to me.”
On 29th June 2008, Indian cities (DELHI, PUDUCHERRY, KOLKATTA and BANGALORE) celebrated gay pride parades. This was the first parade in Delhi, Banglore,and Puduchery.About 2000 people turned out in these nationalwide parades.
On 16th april 2009,India’s first gay magazine BOMBAYDOST, was relaunched by CELINA JAITLEYin Mubmai.
On 24th june 2009,Bhubneshwar,the capitalcity of the Orissa, saw its first gay pride parade.
The same day,Union Law Minister has conveyed a meeting with the Union Health Ministers of all states to evolve a conseusus on discriminalising homosexuality in India.
THE LEGAL BATTLE :
The movement to repealsection 377 was led by the NAZ foundation (INDIA)Trust, an activist group, which filed PUBLIC INTREST LITIGATION in the DelhiHigh Court in 2001,seeking legalisation of homosexual intercourse between consenting adults8. The Naz Foundation worked with a legalteam for Lawyers Collective to engage in court.In 2003 the Delhi High Court refused yo consider the petition regarding the legality of law, saying that the petitioners, had no locous standiiin the matter. Since nobody has been prosecuted in the recent past under this section it seemed unlikely that the section would be struck down as illegal by the Delhi High Court in the absence of the petitioner with standing. NazFoundation appealed to theSupreme Court against thedecision ofthe High Court to dismiss the petition on technical grounds.The Supreme Court decided that Naz Foundation had the standing to file a PIL in the case and sent the case back to the Delhi High Court to reconsider iton merit.Subsequently,there was a significant intervention in the case by a Delhi based coalition of LGBT,eomens and human rights activist called “Voices Against 377” which supported the demand to’read down’ section 377 to exclude adult consensual sex from within its purview.
In may 2008, the case came up for hearing in the DelhiHigh Court,but the Government was undecided on its position,with the Ministery of HomeAffairs maintaininga contradictory position to that ofThe Ministry of Health on the issue of enforcement of section 377 with respect to homosexuality.On 7 November 2008, the 7 year old petition finished hearings.The Indian Health Ministry supported this petition,while the home mistry opposed such a move . On 12 June 2009, India new Law Minister Veerappa Moily agreed that section 377 might be outdated.
Eventually, in a historic judgement delivered on 2 July 2009. Delhi High Court overturned the 150 year old section,legalising consensual homosexual activities between adults.The essence of this section goes against the fundamentalright of human citizens, stated the High Court while striking it down. in a 105-page judgement, a bench a Chief justice Ajit Prakash Shah and Justice S. Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equalbefore law.
The two judge bench went on to hold that:
“if there is one constitutionaltenet that can be said to be underlying theme of the Indian Constitution, it is that of “inclusiveness”.this Court believes that Indian Constitution reflects this value deeply ingrained in Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants” or “different” are not on that score excluded or ostracised.
Where society can display inclusiveness and understanding , such persons can be assured a life of dignity and non-discrimination. this was the ‘spirit behind the resolution ‘ of which Nehru spoke so passionately, in our views, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBT’s are. it cannot be forgotten that decriminalisation is antithesis of equalityand that is the recognisation of equality which will foster the dignity of the individual.
ADMIDST COPURIS EXPRESSION :
In my views thedilemma is stillnotcompleted . if wefully decriminalises the section 377 there would be many pro’s and con’s of this section on law and on Indian society even. At first I will talk about the pro’s , as it is emerged that the article 14 of Indian Constitution is beingviolated of homosexuals accordingly everyone has the right to live and personal liberty and if this is not provided to them their fundamental right is infrinched.
Secondly the section states that the word ‘natural’ but from the history even one can’t define the word nature ……….that what is natural in one’s eye may not be same for others. Everyone has their own perception to dealwith different subjects. Even in Rig-Veda9 it is written VIKRUTI EVAM PRAKRITI which talks about the same.
Thirdly , criminalisingthis section somewhere or the other promotes so called illegalactivities behind the curtains.As theInternationalpressure10, UN urged to decriminalise homosexuality by saying it would help the fight against HIV/AIDS by allowing intervention programmes. Jeffrey O’Malley, director of UNDP on HIV/AIDS said “countries protecting homosexuals from decriminalisinghad betterrecords ofprotecting them from getting infected by the disease.”
These are the few things that comes out in favour of homosexuals or LGBT. But at the sametime there are few cone’s on this subject now I willlike to through some light on it. As thesec-377 ofIPC decriminalises it willhave illeffect on the society .The customs and tradition of India does not support to decriminalise as it is totally against the ethics of our society . this will also lead to amendment in the sodomy law11 in India and many other laws willalso be affected .
This willalso lead to more and more practiceof prostitution and MSM’s, the number willincrease to ahigh level.And the health willalso increase with the increase in HIV/AIDS and other sexually transmitted disease.
One of the main point in my view is that in our country, we tend to adopt every new thing which is presented in front of us. Hence more and more people will try to adopt and willbecome homosexualjust for sake of enjoyment and therefore an ultimate outcomewill be the worst.
In the end I would like to conclude with the thought that what will be the judgement/verdict on this issue will keep in mind all the pro’s and con’s of this section and hence work for the same.