The debate over Sec. 377 has started again. The Supreme court has now, acting on a SLP, issued notice to the Government challenging the decision of the Delhi High Court judgment declaring Section 377 unconstitutional so far as it relates to consensual sex between (among) consenting adults.
Earlier, after the Delhi High Court gave its landmark verdict, religious leaders were up (pun intended) in unison criticizing the judgment. This however reinforces my belief that these religious leaders never went to a proper school coz. they really cannot understand legal language. What does Sec. 377 actually say? Let us have a plain reading of the text in the legislation.
377. Unnatural offences: 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 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 offense described in this section
First of all, without going into the homosexuality angle, this section sounds plain ridiculous. What is the order of nature? This sounds like some ancient manuscript where God seemed to be on a hotline with religious leaders and they seemed to ‘know’ what the order of nature exactly is. Wikipedia explains that this section was mainly devised to criminalize and prevent homosexual associations and extends to any unnatural acts. And ANY unnatural acts really meant almost everything else.
The Debate:
I’m just looking at the legal aspect of this section. I’m not going into whether Homosexuality is normal or not normal coz. I’m not sure about this question. But I think I’m sure about the legal aspect of this.
Disease?
The people aggrieved by this decision of the Delhi High Court say, Homo-sexuality is a disease. Even if I agree (though, no scientific research or text book uses the word ‘disease’ for this behaviour), how can you criminalize a disease?
Baba Ramdev (though I respect him for what he’s doing for the health of India) on TV went ahead and compared a Homo-sexuality to a madness saying that a person who is mad thinks he is fine but the entire world around him is mad. Going by his own argument for which though there is no medical proof and it is only his and a few other people’s OPINION, I’d like to ask him – Is madness a crime? Actually, at times, madness is used as an excuse for not being penalised. If what he says is right that such a condition develops because of hormonal imbalances, even then, how can a person be penalised for how his hormones behave?
I’m not even arguing whether it is a disease or not. I’m not technically sound to do that. But just going by common sense, it is clear that you cannot criminalize this behaviour. Why can’t this simple logic be explained to Babaji and that Dharmendra guy in the revealing white robe and that Maulvi on TV with the round cap?
Transexuals?
Again today on TV, I saw Bobby Darling debating with Acharya Dharmendra. How stupid is that? Bobby Darling is not a homosexual but a Transexual. She (not he) believes she is a female but all her physical characteristics are that of a male. And she can remedy this situation by undergoing a sex-change operation. I think she is on her way to do that and is taking artificial hormones to prepare herself for that surgery.
This is the line a lot of us blur. Homosexuals are seen as stereotypically womanly men who speak, dress and behave like women. This is far from the truth. Not all homosexuals (not even a majority) behave, act or speak like a woman. Boman Irani of Dostana is not the typical homosexual. Sanjay Suri in My Brother Nikhil is more like it… A homosexual is just another normal man and you wouldn’t really know the difference unless he (not she) told you. Just like you wouldn’t know if someone was vegetarian or non-vegetarian.
I agree that transsexuals are also affected by this decision but just clubbing the two together and calling Bobby Darling as the icon figure for Homosexuals is way off mark.
On another note, it even seems unfair – pitting Bobby Darling to debate against Acharya Dharmendra who’s almost a champion elocutionist, and has spend his life ferociously debating his point of view.
Most of all, what this does is that it takes this debate to the area of hormonal imbalances rather than personal preferences.
What the opposers of Sec. 377 are actually advocating is freedom to choose whoever (or whatever) you like which may or may not be because of a hormonal imbalance. The point is about freedom to choose – to have preferences. Not about people born in the wrong body. You can be a man and a homosexual. That is the point.
Legally speaking, I don’t really see any debate on the applicability of Section 377. It is an ancient law which is obviously meant to be canned. Why even Acharya Dharmendra said today that “You can do whatever you want in your homes, just don’t bring it in public”. How can he then oppose repealing of Section 377?
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I guess, taking a leaf out of this decision, Vijay Mallya today called on the Gujarat Government to repeal prohibition. This was prompted by the death of around 100 people due to consuming locally made poisonous alcohol. Similar logic applies – Equality of All (as in citizens of all states of the country) and the Freedom to choose. I think there is another post waiting to happen soon…
Located in Dubai but Heart in India 