Simplifying Section 377: From British Raj to Changing Times, What India Needs to Understand

There has been a huge uproar throughout the country with people supporting the striking down of section 377 of the Indian Penal Code, 1860 (IPC). The people who have successfully been able to adapt to the circumstances with time and the people who have a broader mindset wish to strike the section down. When people talk about section 377 of the Indian Penal Code, people generally think it just criminalises homosexuality (sexual attraction to the people belonging to the same sex) and violates the rights of gay people. However, there are more aspects of this section than what most people are aware of.

It can be divided into the following three parts for easier understanding-

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• Criminalises homosexuality.
• Criminalises certain acts between heterosexuals.
• Criminalises sexual activities between humans and animals

CRIMINALISATION OF HOMOSEXUALITY

There are a lot of people who see homosexuality as a crime and a disease which can be treated. However, these are those people that are prohibiting the progressive laws to enter the society.

Homosexuality is a person’s sexual preference and not a disease, just because heterosexuality is “common” does not mean it is a norm and homosexuals violate it.

It is not a disease people get infected by, by watching or talking to homosexuals or engaging in sexual acts with them, people are born that way. This is not a mere opinion, neurobiologist Simon Levay’s 1991 Study on the Brains of 41 Cadavers proves it. A test was conducted on a group of homosexuals and a group of heterosexuals and it was found that a cluster of neurons in the brain were smaller in homosexuals which were the cause behind their homosexuality. It is not a choice, it is innate. How and why should anybody be punished for something they are born with? Why should a human be stripped of his/her rights? This is just one law, there are various other Indian laws that leave people dumbstruck.

People often term homosexuality as against their religious scriptures and as a sin but the religious orthodoxies fail to see that there is consent involved. Raping is a sin as the perpetrator does not take the consent of the victim before raping. Homosexuality is not a sin as there are two adults engaging in sexual activities with each other’s consent.

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We live in the 21^st century and it is time to break free from the shackles of orthodoxy and embrace the progressive laws. Homosexuals do not harm the society, criminals do.  Homosexuals are not detrimental to the society as consent is involved and activities take place between two adults. It does not harm any third person in the society. On the other hand, rape does not involve consent and the country should be focusing on punishing rapists and other criminals instead of criminalising sexual activities between consenting adults and punishing the innocent. There are so many more progressive laws that India needs to introduce as soon as possible.

CRIMINALISATION OF SEXUAL ACTS BETWEEN HETEROSEXUALS

Section 377 of the Indian Penal Code states that- “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 a term which may extend to ten years, and shall also be liable to fine.”

For this section, penetration is sufficient to constitute carnal intercourse. The section also has various implications for heterosexuals. According to the meaning of the section if a man and a woman engage in sexual activities which are against the order of nature they will be punished with imprisonment for life and/or fines. This means that anal sex and oral sex are against the order of nature as they do not contribute to the process of reproduction. However, a lot of people engage in anal and oral sex behind the four walls of their homes and yet they go unpunished. No case so far has been registered against any heterosexual for engaging in sexual activities against the order of nature. Most people are unaware of the interpretation of this section and the implications on heterosexuals. This is a really old law introduced during the time when the British ruled India but times have changed, the concept of sex is no more as much of a taboo and progressive laws need acceptance. There are other important and bigger things to focus on such as the abolition of divorce by the method of triple talaq, making marital rape a crime in India, making sexual harassment laws more stringent etc.

CRIMINALISATION OF SEXUAL ACTIVITIES BETWEEN HUMANS AND ANIMALS

If any person, man or woman is found engaging in sexual activities such as oral sex and/or carnal intercourse with an animal the person can be punished with imprisonment for life.

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STEPS TAKEN IN INDIA

This section has been a bone of contention in India for several years now and India has taken a number of steps including many Public Interest Litigations (PIL) supporting gay rights.

• Section 377 was introduced during the British rule in India.
• The section was decriminalised by the High Court in 2009 if people engaging in sexual acts were adults and did so with consent.
• The judgment of the High Court was overturned by the Supreme Court on 11 December 2013.
• The decision of the Supreme Court met with heavy criticism and was not accepted by the a lot of people. Thus, in February 2016, a curative petition was submitted by Naz Foundation and the Chief Justice of India, T.S. Thakur decided that the petitions will be reviewed again by a constitutional bench consisting of five members as it was decided that homosexuality is a subject that should be left to be decided by the legislature.
• Now India awaits a decision and hopes the Supreme Court’s mistakes of re-criminalizing homosexuality will be rectified by the parliament. Most of us have been successful in embracing the changes in the world brought to us with time but some of us are lagging behind. The difference in the opinion is what hinders growth and development in the society.

WHY SECTION 377 SHOULD BE REPEALED

• It violates Article 14 of the Indian Constitution which guarantees equality before law to all individuals. What use is the anti- discrimination and equality bill introduced by Dr. Shashi Tharoor in the Lok Sabha, if people are being discriminated against on the basis of their sexual preference?
• It violates Article 15 of the Indian constitution which ensures that no person shall be discriminated against on the basis of caste, gender, creed etc.
• It violates Article 21 of the Indian constitution which ensures the right of life and liberty to all the citizens of the country.
• It is a concept that is widely accepted throughout the world and it is time India moved ahead with embracing progressive laws to join other nations on the path of development and progress.
• The most common argument against homosexuality is that it is against religious scriptures and is detrimental to the culture of the Indian society. However, people fail to take into account that Hinduism (the most practiced religion in India) depicts in sculptures and scriptures people of the same sex engaging in sexual activities. If it is depicted in the sculptures of temples it means it was practiced before and was not condemned. If India fails to repeal the section then India would be moving backwards and not be progressing. Progressive laws are what the nation needs to emerge out of the cave of darkness that the nation is stuck into at the moment.
• The LGBT community (lesbian, gay, bisexual, transgender) is no more a minority community. A lot of people hailing from different backgrounds identify themselves as LGBTQ. Just because they are gay, India does not give them a right to get married or engage in sexual activities as Section 377 criminalises homosexuality. It is no more about a couple of people struggling for their rights, the broad-minded joined hands to protect the interests of the homosexuals, who are at the end of the day, citizens of the country and humans of the planet.

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A techie in Bangalore was arrested in 2014 after his wife discovered he was gay. The wife filed a case under Section 377 of IPC and also for divorce on the grounds of cheating under the divorce laws in India. However, life imprisonment to the husband will not provide any redressal to the wife. Instead, if India decriminalises homosexuality, at least the techie could have been honest about his sexual preference from the beginning and the wife and the husband would have been better off.

Most of the times homosexuals and their behaviour are termed as deviant. Just because homosexuality is not widely practised in India does not mean it is not normal. Just because it is not common does not mean it should be condemned. India is a developing country and what will boost the growth and development in the country? The introduction of progressive laws will. Homosexuality will remain a taboo as long as people are willing to shove it under the carpet of oblivion. When people actually make the effort to understand that homosexuals are born, they do not pose a threat to the society by influencing people and that they are not deviants, only then they will be able to understand their position and work for them. Should have a different sexual preference than those who have the power be a ground or reason enough to be imprisoned and/or fined. If Ireland, United States of America (USA), Nepal, South Africa, Belgium, Denmark, Brazil, Portugal, Finland, Scotland, France can legalise it, why can’t India do the same?

For legal advice and assistance, check out the Lawyered website.

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