Monday, February 27, 2006

Section 377

Recently, after having watched My Brother Nikhil, ( for the 3rd time, I am such a huge fan of Juhi Chawla) I was talking to a friend about homosexuality in India and gay rights. Following that discussion I decided to peruse any relevant information available. I have to say, Section 377 of the IPC makes for quite an interesting read. It states -

Whoever voluntarily has carnal intercourse (defined as penetration) against the order of nature with any man, woman or animal, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable for fine.

What does this overtly ambiguous statement imply ?
  • The act of sodomy is illegal.
  • No two homosexual males can indulge in sex, from the previous point
  • Even married heterosexual couples can be found guilty and fined or imprisoned
But I'm still confused and I would be grateful if anyone better versed in the jurisprudence would enlighten me on the following.
  • Is sex between married heterosexuals illegal if it is for pleasure instead of procreation ?
I guess this strongly ties to understanding exactly what - "...against the order of nature" means. Now I'm not a student of biology or animal behavior, but from what I do know, in the animal kingdom, mating occurs for the sole purpose of procreation. Hence, my confusion.

Wouldn't that also mean that condoms should be illegal? I mean, if sex occurs only for the purpose of procreation, then we shouldn't need condoms in our society.
  • Is cunnilingus or fellatio also illegal ?
I've never seen animals perform oral sex on the discovery channel. Maybe I spent too much time watching Cartoon Network instead of Animal Kingdom or DC.

But seriously....

I believe that this provision exists in the Indian Penal Code to ensure that male rape and child abuse is prevented. Clearly, there is no indication that the government condemns being homosexual but it most definitely does condemn homosexual acts.

Now I am sure that most of our laws are "CTRL C .... CTRL V" from the British constitution. But while this law has been repealed where it originated it still exists in our legal system. Why ? It is obvious that this law is from a puritanical time when pleasure was condemned. But why hasn't it been repealed yet ?

Even when a petition was filed in 2003, the National Democratic Alliance government responded stating that -

it was tool that could be used by the government to interfere in the private sphere in "the interest of public safety and protection of health and morals".

Brinda Karat, who was then general secretary of the All India Democratic Women's Association (AIDWA), wrote a letter to Arun Jaitley, the then Minister for Law and Justice, objecting to the arguments advanced by the government justifying the continuation of Section 377. In the letter she said that AIDWA maintained that the government did not have the locus standi to interfere in the private sexual activity of two consenting adults, regardless of its interpretation of what was natural or unnatural sexual behaviour. She pointed out that if one were to accept the government's standpoint, then many existing pieces of legislation concerning women's rights and Dalit rights would not have been enacted since there are many sections of society that consider wife-beating or dowry taking to be consistent with "tradition and culture", just as they consider untouchability to be the "natural order" of society. Addressing the government's argument that Section 377 needs to be retained because it is also used to deal with cases of child sexual abuse and is therefore necessary, Brinda Karat said that there was nothing to prevent the government from enacting a comprehensive law against child sexual abuse, which should include a clause that criminalised non-consensual same-sex relations.

Exactly. Child abuse and male rape are serious issues, but it is possible to enact a law against it specifically. There is no need for a vague law that is more than often abused and used to harass gay couples.

I think its about time the government withdraw itself from my bedroom, regardless of whether I'm gay or straight.


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