Article 377 : Battle of sexes

Article 377 : Battle of sexes
                               -Aachal burande

           Section 377 of the chapter 16 of IPC (Indian Penal Code) is becoming the big issue in the Indian legislative system. It is the large black spot over the fundamental rights in constitution of India. Section 377 describes that, any sexual activity which is against the order of nature is a crime. Section 377 is headed as “Unnatural offences”. It states that, ‘ Whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal shall be punished with imprisonment for life or with imprisonment of either description for term which may extend to 10 years and shall also be liable to fine'. It criminalizes any sexual activity of Homosexuals i.e. LGBTIQ ( Lesbian, Gay, Bisexuals, Transgender, Intersexual & Qeer) other than the heterosexual penile- vaginal which is meant to be natural. Homosexuality is nothing but the sexual attraction towards the person of one's own sex. Homosexuality till recent were considered as the abnormality and for this reason gay people were got tortured, harassed & even suffered by rape.
           The origin of section 377 was under the Buggery Act,1553. Buggery means unnatural sexual relations between men. The punishment for accused was direct hang to death. It was the first act passed in Germanic country at the time of Kinga Henry 8th against the sodomy. Further, in England, it was prescribed by queen Elizabeth 1st & then it was first recorded in Fleta in 1920. The ‘unnatural offence' in India was the putrid fruit of this act by the British colonial rule. It was first introduced in India through the act for Improving the Administration of Criminal justice in 1837. Initially, it was under section 361& 362 but further it Incorporated in section 377 as a part of IPC in 1860. From this amendment, the punishment for sodomy was reduced to 10 years of imprisonment.
            The constitutional progress of this section in India was started with the verdict of Delhi High Court in case of Suresh kumar Kaushal Vs. V. Naz foundation in 2009. Verdict was with Suresh Kumar and   the unnatural sex.  But in 2013, Supreme Court struck the decision of Delhi high court and recriminalize it. Further, right to choose sexual orientation to transgenders was agreed in 2014. Even in 2013, the privacy member bill was denied on the basis of LGBTs as a “ minuscule fraction of the country's population” and made it light to their so called rights. Congress leader, Shashi Tharoor was doing protest against rights of transgenders from the very beginning. He brought privacy member bill twice in loksabha & finally passed in August,2017. Now, recently on 8th January SC (Supreme Court) opened the door of hope for members of LGBTQ community by setting the bench for re-examination of its much criticised 2013 verdict. CJI (Chief Justice of India) Dipak Misra , Justices A. M. Khanvilkar and D. Y. Chandrachud will reconsider section 377.
          After overviewing the legal walk, we can not ignore the religious or mythological context of qeers. In the ancient Hindu literature, in Kamasutra and Mahabharata and Ramayana, the holy texts of Hindu religion has the significance of third genders. Lord Shiva when merges with goddess Parvati then in that lent he is known as Ardhanaarinateshwar. Along with this, in the period when monarchy was there, third genders were used for protection of queensa & at the same time, in Maharashtrian fold culture Nachas were played role in the Lavani. In the Muslim religion, urdu cultural poetry named as Rakhti which shows sexual intimacy among womens and Ghazals which apparently indicates passion amongst the men has referred sodomy. In Bible, the holy book of Christians, homosexuality is condemned. The word sodomy arises from the story of sodom as depicted in Genesis 19 as a ground of teaching people that homosexuality is unnatural. Although, there are religious protest for LGBTs but in the sacred book of Hinduism, it is said that, “ Vikriti Evam Prakruti” which means whatever seems unnatural is also natural. As India is the land where equality in diversity exist. Many scholars believed that homosexuality as diverse form of human life.
            While discriminating LGBTIQ, the main delusion is whom should be considered as Lesbians or gays. Lesbians can be consider as women but getting sexually attracted towards women. Gays are the men who get sexually captivated by men only. Here B stands for Bisexuals which refer as those who gets attracted by the person of same gender and by the different one. Transgenders are those who has sexually transferred from one gender to another. I indicates intersex, which means people with both the characteristics and Q is Qeer that describes the broad umbrella term for anyone who may identify as being either gender, sexually or bodily diverse. Third genders are bit different than these categories because those are biologically born with some deficiencies which not classifies them either as male or female.
            When one analyze section 377 from the perspective of political science, this section is blot over the concept of state. Talking about the fundamental rights and directive principles of state policy these are the conscience of the Indian Constitution as pointed in the book “ The Indian Constitution- Cornerstone of a Nation” by Granville Austin (Austin's theory of state). Population is the first essential element of state & all people should live in dignity is should be mandatory. Every citizen have their fundamental rights & human rights. As in the concept of state, violation of fundamental rights indicates negative obligation on the part of state. This article is the biggest infringement of fundamental rights in Indian constitution mainly of article 14, article 15 and article 21. Article 14 is right to equality, article 15 is not to discriminate on the basis of sex and right to live life & liberty is article 21.
           Human rights is one of the reason for the rejection of this article. Rejection of this section can control population growth, the big problem India facing since years. This may legally allow homosexual marriages and those couples will adopt more children from orphanages & this may solve the issue of adoption. Along with these, morality of entire issue is important, here social acceptance is more beneficial with legal acceptance. Although, this is not only against of homosexuals but it is also of heterosexuals because “ a boy inserts in its Indian culture into the female value” is the Indian definition of sex. Here oral sex, anal sex & all sections of porn clips are illegal. Some great people named it as Indian culture. How could it be  The patriarchal culture of India distrust any sexual activity which is “non beneficial” to the mal sperm or semen as it leads to the loss of the male semen which holds the seed for procreation. Here LGBT is the crime which is worst than rape therefore, punishment for rape is of 7 years and for LGBT it is of 10years. Some of also claims that scrapping section 377 is against Indian culture but how could it be a Indian culture? It is Britain culture and it is only as Indian culture as the Kohinoor diamond is of British culture. England did this decriminalization in 1967 and India is still struck in unnatural offences issue. Some people agrees to discriminate LGBT but they says, Indian minds are not ready to accept this as it consist of conservative society. If you thinks India needs to be advance for accepting homosexuality but India needs to accept homosexuality then it will advanced.
           Great sort of work is still going on around the world. In India also various films are decriminalizes LGBT such as “Aligarh” , “Natarang”, etc. are the films exposing issues of LGBTs. After Louie & The Battle of sexes are the movies released in US in 2017. The ladder , drum are some of magazines which are specially publishes their life, issues. Humsafar trust, Naz foundations are some of the institution working for this community. Yash raj films recently launch band for people who belong to this community. Many persons like first gay Oscar winner Sam Smith, Laxminarayan Tripathi (“Mi Hijra, Mi Laxmi” biography), Andrew M Cuomo who is the first open gay became judge in Newyork. Manabi Bandopadhyaya who is the first to be the principle of Krishnagar women college in West Bangal. Recently in Australia, same sex marriage was legalize with total 25 countries in all over the world to do this. People are changing with their mindsets. Not fast but steadily India will accept all these changes if every citizen tried to improve self perspective. As M.K.Gandhi said, “ Be the change, you want to see”.
             
               

References: 1. Write up from Times of India, The Hindu.
                  2. Articles from Academike
                  3. EIC outrage : youtube channel
                  4. Marunicci Mimi. ‘Feminism is Queer: The Intimate Connection Between Queer and Feminist Theory’. 2010 ( ref from PDF of article Historical evolution of Article 377)