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Posted by Agnivo Niyogi
On July 2, 2009, the Delhi High Court declared Section 377 of the Indian Penal Code unconstitutional, thereby, giving a new ray of hope to millions of Indians who were stigmatized for their sexuality. The section, which criminalized consensual sex between two adults of the same-sex, was grossly misused by the police to target and victimize homosexuals. With 377 gone, it was a dawn of freedom for the LGBT community in India.
However, on December 11, 2013, the Supreme Court overturned the Delhi High Court verdict, thereby declaring lakhs of Indians criminals in their own country, solely for their ‘choice’ of love. The decision of a legislation to decriminalise homosexuality was left the Parliament of India.
The judiciary is the custodian of human rights, and has the mandate to make decisions in the interest of the public. But Justice Singhvi adjudged that annulling Section 377 of the IPC for a “minuscule minority” is improper. Well, the Constitution of India warrants that no matter how minuscule a minority is, their rights must be protected.
Article 21 of the India Constitution includes right to privacy also in its sweep which was upheld by our Hon’ble SC in Kharak Singh v State of UP for the first time. The Supreme Court held that right to privacy is an essential ingredient of right to personal liberty.
While a common case against decriminalizing homosexuality is that it is “unnatural”, people forget that nearly 500 species on animals show homosexual tendencies. How can a trait so abundantly occurring in nature be “unnatural”?
There is also a class of people who say homosexuality is against Indian culture. That is definitely not the case. The controversial Section 377 of the IPC is a British law that was introduced in the Victorian period. In fact, Indian scriptures and epics are replete with queer characters (the most common being Shikandi from Mahabharata).
The American Anthropological Association stated in 2004: “The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.”
Several countries in the world recognize same-sex marriage: Argentina, Australia, Belgium, Brazil, Britain, Canada, Colombia, Denmark, Finland, France, Germany, Greenland, Iceland, Ireland, Luxembourg, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Uruguay and the United States.
I, therefore, feel, it is about time we shed the colonial baggage, decriminalizing a private and consensual act between two consenting adults. It is time we modified Section 377 of IPC to decriminalize homosexuality.
Let every human being live a life of dignity, irrespective of their gender, sexuality, caste, religion or colour – just as the Constitution of India mandates.
P.S. This is my first post for #BlogchatterProjects
DISCLAIMER: All Images Used In This Post Have Their Respective Copyrights
Posted by Agnivo Niyogi
This post was originally written for NextGenIndia.
The historic July 2, 2009 verdict of the Delhi High Court, decriminalising homosexuality, came up for hearing in the Supreme Court last month, after being challenged by various religious bodies in the apex court. The hearing has been making headlines in the mainstream media from day one, thanks to the various goof-ups made by the government of India.
To begin with, the ministry of home affairs put its foot in the mouth over their position on Section 377 of IPC. Speaking on behalf of the MHA, the Additional Solicitor General, Mr P P Malhotra reiterated the stand (which called homosexuality immoral and against the order of Nature) that MHA had taken in the Delhi High Court. The comments drew flak from all quarters, in mainstream media and social media. The MHA was quick to do a volte-face and distance itself from the ASG’s affidavit. On the next day, the govt counsel clarified in the court that while the govt had no legal problems with decriminalising homosexuality, they have no stand on “homosexuality” par se.
The government also earned the ire of the apex court bench for “making a mockery” of the system by continuously shifting its position on the issue at hand and digressing from the core issue of IPC 377, and focussing on the prevalence of HIV among homosexuals. The government put across the view that homosexuals formed a large risk group for the spread of the human immune deficiency. The Supreme Court reprimanded the govt for the lack of fresh data and asked them to present a detailed account of how many HIV patients are there in India at present and how many of them belong to the LGBT community.
The government came up with a set of data before the apex court. They claimed, there are about 25 lakh homosexual citizens in India, 7% of whom are affected by HIV. What correlation the govt wishes to draw between sexuality and a virus borne disease, is beyond our understanding. Specially so when sexual minorities are just another HIV risk group, and heterosexuals are at as much risk of the disease as LGBT community.
That the government has clearly made this case a theatre of the absurd was apparent from the Apex Court bench’s observation that the supreme legislating body of the nation was casual in its approach towards the case of homosexuals. It pondered what stopped the Lok Sabha from enacting a law decriminalising homosexuality, despite recommendations by the Law Commission.
It seems the rap from apex court worked in waking up the government from its slumber. On Wednesday, March 21, the Attorney General submitted to the court that they had no objection to decriminalising Section 377. Continuance with such an act was against Article 21 of constitution the counsel added.
However, this is too little too late. After opposing decriminalisation at Delhi High Court, the government suddenly seems to have woken up to human rights. Why did the government wait 3 years before changing their stand on Section 377 of IPC, if they claim Delhi High Court verdict was enlightenment for them? Why did the Prime Minister of the country not censure his Health Minister for publicly claiming homosexuality was a disease bred in foreign shores?
The right to dignity of life for the LGBT community is now a few weeks away when hearings on the issue ends in Supreme Court. Till then all eyes will be on Justice G S Singhvi and Justice J S Mukhopadhyay.
[P.S. – This is a rewritten version of an article for the Gaylaxy magazine].