Friday, January 3, 2014

Hullabaloo on Gay Rights

Gay rights have been talk of the town after the Supreme Court overturned the decision of Delhi High Court. The decision of Supreme Court upholds Constitutional validity of Section 377 of Indian Penal Code (IPC) which criminalizes homosexual activities. One must remember that ‘homosexual activities’ refers primarily to Anal Sex and Oral sex between people of same gender.

First of all we need to understand Section 377 of IPC, which states:
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 a 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 offence described in this section.

Now, the first question that we all must raise is- What is the purpose of Section 377? The answer is: To punish the offence of SODOMY, BUGGERY and BESTIALITYThe dictionary meaning of ‘carnal’ is: relating to physical, especially sexual, needs and activities. Sodomy and Buggery are generally used interchangeably and it means ANAL SEX, whereas BESTIALITY means sexual relation between a human and an animal. 

It is essential to know that Section 377 has been challenged on the following grounds:
1.  Violation of Article 14, which guarantees equality.
Section 377 does not criminalize a sexual act for any particular gender; it equally applies to all genders. Hence, there is no discrimination.
2. Violation of Article 15.
Without discussing Article 15 and confusing the readers, we can understand that the article prohibits discrimination on the basis of sex. Sexual ORIENTATION does not have anything to do with Article 15. No matter what sexual orientation one has, one can exercise the right guaranteed by Article 15.
3. Violation of Article 21

Article 21 provides right to life and liberty, subject to the procedure prescribed by law of the land. If law criminalizes liberty to carry out sodomy, it is a crime. Hence, Parliament will have to amend or abolish Section 377 to accommodate Lesbians, Gays, Bisexuals and Transgenders (LGBT).
When we talk of human rights and support abolition of Section 377 IPC, we not only support sodomy and human-animal sexual relation but also seek abolition of a law that primarily intends to punish UNNATURAL LUST. The victims of such unnatural lust are mostly children and women, with or without their consent. It is argued that the law criminalizes acts which are normal sexual expressions for homosexuals. The question is what about people who prefer satisfying their lust with animals? What about two adults who indulge in violent and risky sexual acts with their consent, like we saw in the movie Body of Evidence (1993)? After all a personal choice remains a personal choice and its expression remains normal to every individual who expresses it, isn't it?

Now let’s consider a bisexual male having a woman partner who is neither homosexual nor bisexual, and the same bisexual male having another partner who is a bisexual male. Can we imagine the extent of violation of human rights and violation of privacy of that woman? And besides that, can we ignore the health hazards that may exist among the three? Above all, how many of us will desire to have such neighbors and how many of us will allow our kids to mingle with them?  How many of us while raising the banner of Human rights of LGBT have weighted the glaring perspectives? Abolition of Section 377 just to legalize sexual acts that LGBT people indulge in has its own consequences. It will decriminalize heinous acts done to satisfy unnatural lust. Are we ready to accept that? If overlooking the wishes of few people is in the interest of larger number of people, so be it. This is what jurisprudence prescribes.

Activism should not be mere fashion statement or just a means of securing extra credit for admission in foreign universities. How many of us have raised placards for Human Rights of Prostitutes? How many of us have demanded legalizing prostitution in order to protect their rights? How many of us have not taken a longer route to avoid the streets they live on? How many of us have not thought- “किसी ने उधर से जाते हुए देख लिया तो...” Is that not discrimination? Can any law eliminate such discrimination? On the other hand, if prostitution is made an industry can we imagine watching with our family an advertisement highlighting the skills and offers of a sex-worker on a national television? The answer is NO.  We all know what organs all of us possess; do we go out without clothes? Why is there a practice of wearing clothes and that too, a decent one? How many of us will advocate “Right to be nude in public”? It sounds absurd, doesn’t it? It’s all about ZONE OF ACCEPTANCE; what is acceptable for one may not be acceptable for the other. The purpose of social norms is to minimize disorder, and the objective of any law is to bring as much order as possible in the society.

No matter what we raise our voice for, we cannot ignore the fact that in matters relating to human life style and its effect on the society there will always remain grey areas, where an attempt to regulate certain acts will only invite more evil. Apt example is marital rape which is not recognized as an offence. Had it been recognized as an offence, divorces would not have resulted only in separation but also in imprisonment of the husband along with a stigma of committing rape on wife, at the will of the wife. Can we imagine a situation where negotiations are done to obtain divorce in lieu of not invoking rape charges?

The question arises- “Then what is the solution?” When we travel on highways, we love to drive at the highest speed possible. However, there is a restriction on the speed limit. Why? It’s because it’s in the interest of others who are driving on the same highway. The question is- Whether we want to strike a balance for the betterment of individuals and our society, or in the garb of human rights we want to invite more evil than what exists now?


  1. One important correction. Not all school of thought suggest greater good for greater number of people as you suggest by saying "f overlooking the wishes of few people is in the interest of larger number of people, so be it. This is what any school of thought prescribes." This a very utilitarian view. There are other philosophical schools, one such being the deontological school, where this post 20th century rhetoric is fully rejected and for good.

  2. By mentioning 'school of thought' I referred to Jurisprudence. When there is CONFLICT of interest between two groups of people, interest of the larger group must be protected, and that is certainly for good.

  3. Nice article. In an article discussing legal issue, a school of thought means legal schools of thoughts only which is called jurisprudence.

  4. If this school of thought is so ubiquitous, which only sees greater good for greater number of people then why has this law not allowed mining recently in tribal areas. It can be argued that only few lakhs tribals will be eliminated for greater good of many crores of urban Indians. So i doubt that all legal schools only focus on greatest numbers.

  5. I will really appreciate if you enlighten me which jurisprudence in case of conflict of interest between two groups of people, protects the interest of smaller group and ignores the interest of the bigger group. As far as issues of tribes are concerned, there are multiple safeguards provided in the Constitution of India which guide the policies of the State.