Section 377-2
Pulakesh Upadhyaya
Section 377 : Some observations
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The Supreme Court judgement upholding the IPC section 377 in its totality is a step backward in many ways. It makes “unnatural sex” between consenting adults in private a punishable offence with a fine and a sentence of ten years. It creates a dangerous precedent where a law based purely on perception of what is natural is being upheld as constitutional, sidelining the Delhi High Court judgement which decriminalized consensual sex between two adults in private.

Some interesting contradictions can be observed in the arguments given by the side which supports recriminalization of homosexual activities in private space. The first is that it is a mental disease. There is enough scientific evidence to prove that it is not. However, even if this argument were to be accepted, it does not reflect well on the democratic traditions if you send diseased people to prison for ten years.

The second argument is that homosexuality is a Western import. While it is a behavior which is observed across different species of animals, and all races known to man. It is rather silly to claim that it is something that would have skipped our gene-pool. In fact, India’s past has been more or less liberal, and apart from a few instances, there is no evidence that the State had a discriminatory attitude towards homosexuals or considered it as a crime.

It is ridiculous to claim that people would agree to live with a stigma, commit suicide, and live depressed lives in the closet only because they want to ape the West. There are many instances to show that in fact, homophobia rather than homosexuality is a Western import. The very law that is being debated is a Macaulian law. It is a Victorian import, and homophobia justified on the basis of this law can only be a by-product of the colonized mind. The Indian reaction to homosexuality has been far more compassionate than the Abrahamic religions, this sense of bigotry and homophobia is relatively new, and is a part of developing a kind of Hinduism which stands as militant alone, leaving apart the philosophy of compassion.

The third argument is that the law is hardly used, or in fact hardly misused. The very premise of law is that it should provide justice to the last person available. Fundamental rights, even if it is for a minority of one, need to be protected. The law creates a sense of stigma amongst a particular set of individuals, and reduces the cohesion in a society that we expect to march ahead in the path of development.

There is another argument being made that this is one step in making bestiality and sex with animals valid. The preposterousness in this argument lies in the fact that animals cannot give consent. How can sex with animals be treated as consensual?

Another argument is that the scrapping of Article 377 is not a “big” issue. From the point of rights to a minority which is never and can never be a considerable vote-bank, it will never be a big issue. This does not bode well for an argumentative democracy that our reaction to an important issue concerning individual rights in a free state is thrown to the backburner. Unlike others, this is not analogous to the case of providing special privileges to vote-bank minorities by doing away with a Uniform Civil Code. It is also not analogous to the case of providing special privileges to backward castes. It is a question of basic equality before the eyes of law. Personally, I do not see any contradictions in supporting a Uniform Civil Code and scrapping of Article 377 in the same breath. My argument for both is based on the common principle of equality.

This might be an irrelevant issue in an election year for many, but for a small minority it is a matter of freedom and enslavement, a matter of being treated as criminals in the world’s largest democracy. Doing away with the law is not an electoral appeasement at all. Equality before law should be a guiding principle and not appeasement of well-defined vote-bank minorities.