Authored by Soumyadeep Bera
The
propaganda concerning the constitutionality of Section 377[1]
of the Indian Penal Code evoked a great sense of despair and upheaval amongst
the LGBT community and the Indian youth. The constant protests in the capital
and elsewhere led mostly by students demanded equitable treatment guaranteed by
the Fundamental Rights regardless of sex, caste, creed, and class. The broader
and perhaps more rudimental objective was to promote a progressionist agenda,
soliciting the acceptance of homosexuals and transgenders into the Indian
Society. Thus the Supreme Court’s judgment reinstating Section 377 was obscured
by the tidal surge of varied interpretations made by eminent lawyers, media and
political parties. It also led to popular misconception classifying homosexuals
as criminals.
But
section 377 is in itself; unequivocal and the scope is not merely restricted to
the members of the LGBT community and on the contrary, it has legal
ramifications on consenting heterosexual couples. The section was envisaged to
reprimand the act of coitus performed through ‘unconventional’ methods (to
sexually discipline the erotically perverse colonial subjects in 1860[2])
and particularly “unnatural offences”, which include voluntary “carnal
intercourse” against the “order of nature” with any man, woman or animal.
Carnal
intercourse can be construed as anal sex, oral sex and other forms of
penetrative sexual acts[3].
The very existence of Section 377 has stymied the opportunities of same-sex
desiring individuals and their shot at a dignified life albeit the fact that
the aforementioned section is rarely used in court judgments.
It is
imperative, to say the least, that Section 377 and it’s causal link with
homophobia must be isolated. This has created a misconception regarding the
marginalization of the LGBT community vis-à-vis section 377. Even the language
in the statute ‘against the order of nature’ does not thrust upon
criminalization of certain sexual subjects but rather sexual practices. The
judicial understanding of Section 377 does not legitimize/empower the state to
harass individuals having an alternate sexual identity.
The
commentary attached to section 377 illustrates that the section is the only
mechanism to protect victims of sodomy, buggery and bestiality. The Supreme
Court in its judgment, defending the constitutionality of Section 377 stated,
“It is relevant to mention here that Section 377 does not criminalize a
particular people or identity or orientation. It merely identifies certain acts
which if committed constitute an offence. Such a prohibition regulates conduct
regardless of gender identity and orientation”[4].
Therefore there is no legal reason to
ostracize individuals with alternate sexual orientation or third gender.
[1] Section
377 of The Indian Penal Code, 1860 states
that, “Unnatural offences. —Whoever
voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with 1[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”.
[2] Zaid
Al Baset, Section 377 and the Myth of Heterosexuality,
4 Jindal Global Law Review 1, 1-21,
2012
[3] Alok
Gupta, Section 377 and the Dignity of
Homosexuals, XLI (46) Economic &
Political Weekly (November
18th, 2006).
[4] Suresh
Kumar Koushal and another v. NAZ Foundation and others,
Civil Appeal No.10972 of 2013, India: Supreme Court, 11 December 2013,
available at: http://www.refworld.org/docid/535626384.html [accessed 14 April
2015]
No comments:
Post a Comment