Date : 11/05/2015 - Location : New Delhi

Nature v. Normal?

It has been 165 years to the framing of our Indian Penal Code (IPC) under the British Rule but many of our laws still remain archaic. One of the controversial provisions is section 377. Inspired by the Victorian Era moral code, Section 377 criminalizes what it perceives to be 'carnal intercourse against the order of the nature'[1].

The discourse around section 377 has often shied away from discussing at length the rights of all sexual minorities in India and of the LGTB community (Lesbians Gays Trans-genders and Bi-Sexuals) in particular. Their right to privacy is arbitrarily violated by anyone and everyone with the slightest of power and authority, from the moral police to the police constabulary. And all this happens because homosexuality is still not decriminalized in India. The commendable and progressive judgement to decriminalize the consensual homosexual activities between adults was passed by the Delhi High Court in the year 2009 (Naz Foundation v. Government of NCT of Delhi [DB], 2009 (160) DLT 277). This has been over ruled by our Hon'ble Supreme Court in the year 2013 (Suresh Kumar Koushal v. Naz Foundation, 2014(1) SCC 1).

It is important to note here that there has been a tremendous swing in the understanding of homosexuality worldwide, from evil and crime to a normal variant of human sexuality. The World Health Organisation, in 1992, officially accepted its normal variant status. India has accepted many activities which in the earlier times were considered unnatural, such as surrogacy, live-in relationships etc. Homosexuality should be next in the row as many countries have already decriminalised this behaviour and some have recognised same-sex marriages. India is one of the few remaining countries where consensual homosexual activities are yet to receive a legal status and decriminalised.

There have been many studies in the recent times that have documented a high occurrence of same-sex feelings and behaviour in men and women and its prevalence across cultures. Certain investigations used psychological tests and yet could not differentiate heterosexual from homosexual orientation. Studies also confirmed that people with homosexual orientation did not have any objective psychological dysfunction or impairments in judgement. The 'alternate' sexuality has now been considered a normal variation by the medical health professionals, psychiatric professionals, and mental health professionals.

An amusing reality of our times, however, is that consensual homosexual conduct was not criminalised before the British Rule and the same is not what the western culture taught us. The Indian society's misconception has always been that homosexuality is just a concept adopted from the West. However, we have failed to acknowledge the existence of homosexuality within our households and what we have learned from the West is in fact how to criminalize it. Our sexual minorities are not going to vanish from our country and it is our moral imperative as an inclusive society to recognise and respect their 'alternate' sexuality and join in their fight for legal rights. Moreover, it is about time that we delineate the distinction between homosexuality and sodomy.

It is indispensable in this context to understand that homosexual activities done without the consent of the other person, regardless of the other person's sex, should constitute heinous acts. However, when a boy is sodomised by another boy/man, he finds it extremely difficult to get this act reported or get a complaint registered in a police station. He fears stigma and undergoes trauma knowing that people, even close ones, might not believe him. While gender sensitisation of our society, police and administration is essential when it comes to crimes like rape, much more needs to be done to throw light on sodomy especially when it involves young boys.

Children form the most vulnerable group against which the offence of sodomy is committed. Many recent newspaper reports have shown how children, both girls and boys, in all age groups have become the casualty of this heinous crime. A study by the Ministry of Women and Child Development in 2007 revealed that a majority of children who are victims of sexual abuse have been abused by people known to them and in positions of trust and responsibility (parents, relatives, teachers). Despite this, the Juvenile Justice (Care and Protection of Children) Act, 2000 does not contain any provisions or safeguards whatsoever relating to the offence of sodomy.

The universal law of Human Rights mentions that norms of the society, tradition, customs or values cannot be used to limit a person from declaring his fundamental and constitutional rights. If we were to accept the explanation, given to us by cultural views, public strategy and societal morals, which have always restricted a person's right then there would have been no progressive legislation enacted in our country. Sati, dowry, child marriage and infanticide are practices derived from cultural conviction, but the State still took steps to prohibit them.

Hence, when they say that "when a man mounts another man the throne of the God is shaken" it should only be shaken if the same or the similar act is done against the will of the person or against a child or against an animal.

Chawla Publications (P) Ltd.