Section 377- Is Indian Society Progressive?
This guest blog has been written by Amit Balhara.
Section 377 of IPC declares sex between the people of same sex as illegal. Delhi High Court in 2009 had held the IPC Section 377 as invalid. Many from the LGBT community were happy about the decision and had come out in the open. However the Supreme Court upheld Section 377 of the IPC. Many review petitions were filed but they were all rejected by the Supreme Court. The Supreme Court put the onus on the Parliament on the subject. Shashi Tharoor, in his private bill in Dec 2015, had tried to decriminalise consensual sex between the same sexes. The bill was defeated in the Lok Sabha. In Feb 2016 the Supreme Court has accepted the curative petition on the issue.
Constitutional Position of Section 377 of IPC
Our constitution guarantees some fundamental rights. Some of them are:
- Right to equality (Article 14).Right to equality in this case is clearly violated. If heterosexual sex is legal then homosexuality should also be legal.
- Right to freedom of speech (Article 19).People from LGBT community will not be able to speak openly about their relationships.
- Right to life (Article 21).This is also violated as a person is not able to live as per his wish. Many LGBT who came out in the open after Delhi High Court’s judgement can now be put in jail.
Why Bill should have been Passed?
- Some orthodox hypocrites call it against Indian culture. In our culture Lord Shiva is known as ‘Ardhnarishwar’ that is ‘lord who is half woman’. There are many references in Indian mythology which show acceptance of homosexuality and transgender. Thus this argument is invalid.
- Homosexuality is legal in more than 20 progressive countries. India would like to be a progressive country.
- Homosexuality is not against nature as it is found in more than 450 species.
- WHO in 1992 removed homosexuality from the list of disorders. It is not a medical disorder.
- .People can come out in the open for the treatment of HIV and disclose their sexuality.
Hope from Supreme Court
Elected members have often failed Indian society. This is yet another example. Fearing a backlash from religious fundamentalists the Parliament has not tampered with the archaic Section 377 of IPC. Supreme Court has come to the rescue of Indian society in such cases in the past. It is hoped that the Supreme Court provides the much needed justice to the LGBT community. It will definitely raise the stature of the Supreme Court.