Section 377

I start by making my position clear. The restoration of Section 377 of the Indian Penal Code 1861 to the statute book by the Supreme Court is shockingly regressive, wrong, and extremely conservative decision, and the section needs to be modified at the soonest.

My point simply is that why does sex between consenting homosexuals/lesbians/gays need to be a crime? I stress on the word crime.

Before getting all worked up, I believe it is helpful to set down the section, and, what it means and how Courts have interpreted and applied it. Mind you, these are all facts, there may be very good reasons for the Courts to have made certain decisions.

Section 377, IPC reads as:

“377. Unnatural offences.—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.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Lacking precise definition, Section 377 became subject to varied judicial interpretation over the years. Initially it was interpreted as covering only anal sex. Later interpretations included oral sex and still later, interpretations covered penile penetration of other `artificial’ orifices like between the thighs or folded palms. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all penile-non-vaginal sexual acts under the vague standard of ‘unnatural offences’.

Though, on the face of it, applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the penetrative sexual acts engaged in by homosexual men, thereby criminalising their sexual expression and identity.

Christian religious morality does not approve of non procreative sex. This has meant that the Christian Church has frowned on homosexuality. Fair enough. The Church may frown on this, the priests may preach that homosexuality is bad/immoral/wrong etc. A homosexual Christian may have to make a painful decision of deciding whether and how to deal with his religious desires and his sexual orientation. Spokesmen of the Church will obviously never support homosexuality. But, the point is that even in countries with majority Christian populations, while the Church has its view, homosexuality is not a crime. The homosexual Christian may be mocked, looked on in ridicule by society, ostracised from the Church, but there is no crime.

Our own BJP has made two points. First, that the BJP believes that homosexuality is an unnatural act and therefore cannot be supported. The second is that a vast majority of the population is heterosexual and it is a small proportion that is homosexual. The call for amendment of Section 377 is from the elite, the liberals etc. Fair enough. While, I do not think that homosexuality is unnatural, I do agree with the other statement made by the BJP. Once again, so what? Yes, liberals are asking for amendment, yes, homosexuals are a small minority. But should it be a crime? When preaching your meaning of Hinduism you could certainly say that homosexuality is unnatural, but should this mean it remains a crime?

The position of the Muslim community is basically the same.

You yourself may be homophobic, and look at gays with fear, contempt, apathy, hatred etc etc. I understand. You do not have to like or be comfortable in the company of someone you suspect as being gay. But, I ask again, should being gay be a crime?

I really cannot for the life of me understand the need to retain section 377 on the statute book. Promiscuous behaviour, public displays of affection, outrageous behaviour are all punishable in any event. I understand that there are no bright line tests for what constitutes bad behaviour, but do we really need section 377 to curb this?

I am really aghast at this judgement. I must say we are painting a fine picture of India. Business wise India is bad with changing rules, retrospective amendments to tax laws. The 2G and Coal scam, whereby existing license holders have been penalised after they have invested massively in India have portrayed a deeply worrying picture. The unfortunate Nirbhaya incident, it’s pathetic handling by the government, the repeated sexual molestation accusations show that India is deeply unsafe. Criminalisation of homosexuality is making us the object of derision world over. What really is happening to us? Where is the leadership?