Opinion

Draconian Law criminalising ‘love’ must be Abolished, here's why

News World India | 0
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| January 8 , 2018 , 23:57 IST

On 8th of January, a three-judge bench of Supreme Court headed by the Chief Justice of India Dipak Misra said it would reconsider and examine the constitutional validity of the law referred to as Section 377 of IPC. This observation of Supreme Court is actually a big relief to Indian LGBT Community as the Apex court is ready to hear objections and suggestions with respect to Section 377 of Indian Penal code.

Well, I am not a LGBT Rights activist, but I strongly believe human beings must be free to decide their sexual preferences.

Section 377 of Indian Penal Code came into existence in 1861 and criminalizes sexual activities "against the order of nature", arguably including homosexual activities.

In July 2009, the Delhi HC decriminalized article 377 with respect to sex between consenting adults, but the same decision was overturned by the Supreme Court on 11 December 2013 with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

Here are few Interesting Points about this absurd law. To understand these anomalies, first read its legal definition:

IPC- 377. Unnatural offenses: 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.

As evident from the language of this section, consent is wholly immaterial in the case of ‘unnatural offenses’ and the party consenting would be equally liable as an abettor. This section is very vague as what is against the order of nature and is not possible to define objectively. What is natural is a subject of debate and has led to much confusion.

For this section, penetration is sufficient to constitute carnal intercourse. The section also has various implications for heterosexuals. According to the meaning of the section if a man and a woman engage in sexual activities that are against the order of nature they will be punished with imprisonment for life and/or fines. This means that anal sex and oral sex are against the order of nature, as they do not contribute to the process of reproduction. A lot of people engage in anal and oral sex behind the four walls of their homes and yet they go unpunished. No case so far has been registered against any heterosexual for engaging in sexual activities against the order of nature. Most people are unaware of the interpretation of this section and the implications on heterosexuals. This is a really old law introduced during the time when the British ruled India but times have changed.

The fact that two consenting adults irrespective of gender performing oral or anal sex can be penalized is beyond common sense and understanding.

Here is one more absurd feature of the colonial section 377:  

"Carnal intercourse with a bullock through the nose is an unnatural offense punishable under Section 377 of Indian Penal Code."

This was observed by Lahore High Court in the Khandu v. Emperor case.

Present NDA government has hinted that they are not going to oppose decimalizing of IPC 377. This move of Government has a reason. In 2012, the government of India submitted to the Supreme Court that there were about 2.5 million gay people recorded in India. After this submission, several political leaders came in support of LGBT Community demanding the scrapping of IPC 377.

After the 2013 Supreme Court's decision, prominent BJP leader Rajnath Singh had said, "We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported." On the contrary, senior BJP leader Arun Jaitley had said, "When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed."

Congress leaders Rahul Gandhi, P Chidambaram, Shashi Tharoor, Trinamool Congress leader Derek O' Brien, CPI (M) leader Brinda Karat, the Aam Aadmi Party among others had come out in support of the LGBT community and had said that homosexuality should be decriminalized.