A British Colonial era legislation, article 377 of Indian Penal Code, dating back to 1861, dealt with sexual behavior that presented itself to be different from the commonly accepted heterosexual relationship. According to this article, people belonging to Lesbian – Gay – Bisexual – Transgender – Queer (LGBTQ) community were considered as deviants and were liable to be prosecuted and sentenced to jail term.
In 2009, Delhi High Court bench of Justice Shah and Justice Muralidhar had decriminalized same sex consensual activity stating that the article violated article 14 of the Indian Constitution that stated every citizen should have equal opportunity in life and should be equal before the law.
On December 2013, Justice Singhvi and Justice Mukhopadhaya of Supreme court had upheld the validity of article 377. The two judge bench had directed legislators to change the law if society thinks such an article is not acceptable.
Recently, on Sep, 2017, a five judge bench of Indian Supreme Court, consisting of Chief Justice of India Dipak Mishra, and Justices D. Y. Chandrachud, A. M. Khanwilkar, Indu Malhotra and Rohintan Fali Nariman had ruled in favor of decriminalising homosexual activity, as long as it is restricted between two consenting adults.
LGBTQ right activists and members of LGBTQ community are ecstatic and are celebrating. Several obvious benefts of the ruling are as follows:
- People of LGBT community may now come out in the open without being charged criminally. According to estimates, there is between 1 – 10 million people that fall in the category of LGBTQ. More people may likely to come out in the open.
- People will not face bias and discrimination on employment front.
- People suffering from sexually transmitted diseases like AIDS may be able to come out for treatment without facing the stigma.
- Members of LGBT community may not face initimidation in the hands of police men who extort bribe and framed in false case.
A large number of people from Hindu right, Christian church and associated organisations and muslim clergy are opposing the ruling for the reasons they believe:
- The activity practiced by LGBTQ community is unnatural. Such an activity goes against the law of god and law of nature.
- It is adviced that LGBT phenomenon should be considered a disease and treatment shoudl be found.
- If we accept LGBT community to be distinct and have law favoring them, should we tomorrow have separate laws for pedophiles and necrophiles?
- People representing this community constitute a miniscule section of Indian population.
- In last 170 years since the inception of the law, hardly 100 – 200 people have been prosecuted under the law. Thus the fear of law being misused is ill founded.
Many have argued that homosexuality is against nautre. The basic purpose of sexual activity is procreation. Homosexuality violates this principle. It can, however, be argued that
- Human sexuality may not be purely for procreation. Humans have option to abstain from sex. Sages, saints, and seekers abstain from sex for spiritual quest, are abnormal. Society reveres them.
- Extending the same analogy of going against nature, one should stop buidling a dam, mining the earth for minerals, treating a disease for illness, predictiong natural calamity etc. or for that matter any technological progress may also be considered to be going against the nature.
Many have argued homosexuality is a disease. It must be treated and homosexual people should be brought within the mainstream of humanity.
- Our understanding of biological sciences has improved over last fifty years. It is generally accepted homosexual behavior is more genetic than acquired. No molecular basis for homosexual behaviour has been identified, let alone finding a cure. There is no evidence to suggest that using a drug a person’s sexual orientation can be altered.
Some argue that if we agree to a set of law for homosexuals, then we may have to make similar concession for pedophiles and necrophiles also. However, we forget a key point in the judgement that suggests sexual activity between two consenting adults.
- In case of pedophilia this concept is violated because victim is not an adult.
- In case of necrophilia, because the victim is dead, the same law cannot be extended.
- An average straight man/woman is unlikely to feel any physical affinity for his / her same companion. It is true that many people tend to experiment on bisexual behaviour. These people will do so irrespective of whether homosexuality is criminal or not.
Those who quote religious texts to debunk LGBTQ behaviour, forget that our ancient epics have also had mention of . For example,
- Arjuna had dressed as an eunuch – Brihannala, in the kingdom of Birat, in the last year of Pandava’s exile.
- Shikhandi was used as shield by Arjuna in his fight against Bhisma. Because, Shikhandi was not a man, Bhisma did not fight him.
- There is mention of ardhanarishvara form of lord Shiva in different puranas.
I think one may have distinct sexual preference, but that uniqueness does not make anyone criminal. I welcome decision of supreme court of India that decriminalises homosexuality, as long as it is confined to privacy of bed rooms between consenting adults.
This article was written in response to a topic proposed by Indispire of Indiblogger. Other relevant articles on the topic may be found here.
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