Gay and Lesbians are also Human Beings - Need to Delete Section 377 of IPC
The recent judgement of Supreme Court annulling the 2009 Delhi High Court order decriminilising the lesbian, gay,bisexual, transsexuals (LGBT), practicing their sexual orientations has created a furor in the country. There are increasing and loud demands that the Section 377 of the IPC should be either amended or done away with. In a conservative country like ours it is not going to be easy to reform centuries old stigma associated with any deviant acts of sex by men and women.
Many opposers to sexual liberalisation are taking recourse to ancient Indian culture and religion to buttress their arguments. But was homosexuality, lesbianism, transsexuals unknown and non tolerated in Ancient India? The reality as usual is different.
In Ancient India:
On the walls of many Indian historical temples one can see paintings and sculptures showing various facets of love making ranging from normal and what by today's legal interpretations would be illegal. They depict all combinations possible between men and women and also with beasts. These are also found in prayer halls of other ancient religions that originated in India. Remember these were not private residences but public places which hundreds would visit daily. Why were they there? Was it to educate or were they a warning to keep away from such abnormal acts? We may never know for sure. Depending upon our value system we can interpret it accordingly.
Ancient Hindu texts are also telling the stories of Gods and their avatars resorting to deviant sexual practices to achieve a stated goal or desire. Mohini is the female incarnation of Lord Vishnu who keeps enticing demons and tempting sages. Even the mighty Lord Shiva is not immune to her charms. It is Mohini who tells Brahma that it is the duty of men to satisfy a women in her fertile period and if he refuses he is a eunuch. They have thus to live separately as women outside the mainstream. This perhaps explains why eunuchs live like women away from society.
In fact the eunuchs earned the blessing of Rama, when upon his return to Ayodhya, after end of his exile he found them still sitting where he had left them at the beginning of his exile. Because he had said to the crowds that came to see him off 'all men and women go back' and the eunuchs being neither, waited all the exile years. Rama told them that it will be a non man who will become a king in the Kaliyuga.
The sex treatise Kamasutra also mentions about sexual acts that men and women can perform on their own likes. The ancient world's law giver Manu also mentions homosexual and lesbian acts and even recommends punishments for them if caught. True to his style these are far harsher for women then men, but very light when compared with Section 377 IPC.
What comes out from the above mentioned sources is that homosexuality / lesbianism were prevalent in ancient times also. However it seems that these were tolerated as long as men fulfilled their duty of begetting children from their married partners. Deviant sex was seen as more of a pastime rather than a problem of orientation. Indeed homosexual men also considered their roles as husbands and fathers more important than their identity as homosexuals. Lesbianism in women was perceived to be because they were sexually frustrated in their marriages.
The general attitude that seems to have prevailed is that it was not homosexuality that was looked down upon. It was the passive partner in such relationships who was at the receiving end. The active partner generally escaped the society's wrath. Homosex was seen as a diversionary form of harmless enjoyment and was tolerated if the person fulfilled his marriage obligations and stayed in the family.
In Middle Ages:
Since 1000 AD Muslims stared arriving in India and were to soon rule large parts of it. Islam condemns homosexuality as a serious crime and advocates strict punishment. However it was practiced and tolerated and ignored till the person continued to fulfill his family obligations. The famous example is the Emperor Babur's declared fondness for a lad aptly named Baburi even while he was married, a fact mentioned by him in his auotobiograhy. In fact in the courts of India homosexual relationships were considered safer as there was no fear of pregnancies and children from illicit relationships with other women.
Throughout this period the Hindu response continued to be one of considered indifference and toleration. Advocating punishment was not demanded by Hindu zealots. In fact compassion was advocated as homos were seen as suffering from some abnormality, preventing them from taking part in normal sex with the opposite sex.
However all this was to change with the acquiring of power by the British in India during the middle of the nineteenth century.
In Recent Times :
The British attitude to deviant sexual behaviour was due to the dominating influence of the Church in the affairs of the State. Also there was a wave of morality prevailing in Victorian England for a major part of the nineteenth century. It was thus in 1861 the British rulers incorporated the Section 377 in the Indian Penal Code making homosexual sex punishable by law.
Section 377 states that '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.'
The operative words are whoever and 'man, woman or animal'. Convictions are very rare and it is reportedly not used against homosexuals. In fact in last two decades no conviction has been reported.
Then why this hue and cry?
In Present Times:
The IPC Section 377 is of 1861 vintage. Since then the world has seen many cycles of progress and changes in human behaviour especially in attitudes towards social stigmas of long standing. Today individual liberty and right to self choice is valued very highly. The attitude towards many deviant behaviours have changed considerably, especially in Western countries like USA, France, and other European nations. At one time many persons were humiliated and often discarded by society as people could not understand their peculiar behaviours. It was the advent pf psychology which gave evidence that these were because of genetic defects or chemical imbalances in the brain or due to stress etc factors. It also came out with counselling techniques and medicines for treatment. Society realised its mistakes and today such patients are not looked down upon but encouraged to take treatment and recover to lead normal lives once again.
Similarly with progress in science, it has been observed that a small percentage of men and women have an orientation to seek love from their types only and they simply are not attracted to the opposite sex. This mutual attraction leads to them seeking sexual gratification also from each other which is considered abnormal by society. This is because by nature man can seek sexual gratification with a female only. This union also is responsible for reproduction of the human race. Any other form of sexual gratification is considered abnormal. Most of the religions preach that sex is to be indulged only in a marriage and that too for the purpose of producing children.
In many religions the hold of the religious institutions was very strong and they advocated that same sex relations and liaisons are not only illegal but also against nature as ordained by god. These thoughts were so deeply ingrained in the minds of the masses. It is not easy for them to change their thinking overnight.
But one cannot disregard the scientific evidence that same sex relations are not a matter of choice but of a particular orientation which is very difficult to suppress. Till recently LGBT persons used to hide their sexual preferences and lead a very stressful married life or lead very repressed life with neither parents nor friends understanding them. They entered into what can be called clandestine relations and meetings would be at isolated places to escape public attention.
However because of Section 377 IPC they are in violation of law and are always under threat of prosecution by the police. Therefore when the Delhi High Court in 2009 repealed the section the LGBT community was very happy, because the sword of law was no longer on their heads. Although it is true that the convictions under this Section have been very few in nearly 150 years of its existence, but the police it is alleged would blackmail the gay community who'd live in constant fear. Also threat of exposure was also there because society was hostile.
It was the religious groups who could not digest this High Court order. They appealed to the Supreme Court and a few days back it quashed the Delhi High Court order and upheld the validity of Section 377 in the IPC. Thus the short lived liberalization of the LGBT community came to an end. Again they feel they are criminals as per Section 377of the IPC. The progress made has been nullified by this SC judgement.
The High Court order was praised all over the world as it was seen India also joining the growing committee of nations who are recognizing the rights of the LGBT persons to live their life by their choice and not be treated as criminals. In fact in many countries same sex persons can even marry and it is recognized by the law. They can adopt children or use modern techniques to have their own children like through surrogacy and raise families. India was supposed to have taken a step forward. The LGBT community was rightly happy.
But all this has been negatived by the seemingly retrograde Supreme Court order. The LGBT community is now having to relaunch their fight to gain their right to live life with their sexual orientation being recognised by law. It is not clear as to why should the self appointed righteous especially religious leaders oppose the LGBT community. One cannot make a normal sex oriented person a gay or a lesbian or a transsexual or a bisexual individual. So there is no fear of it spreading like virus in the society. Further even in countries where they are legally safe, there numbers are very small, say around less than 2 to 3 % of the population. In fact by suppressing them the HIV aids patients among them are not getting proper treatment for fear of law catching them.
It seems that the religious leaders are opposing for the sake of opposition to any idea which to them seems to be unnatural. These are the persons who prosecuted Galileo for his scientific backed truths versus biblical suppositions or even refused to agree that the earth is round simply because their religion said it is flat. Also some political parties and self appointed gurus are also opposing removal of Section 377 because they also have self appointed themselves as the protectors of a particular religion and for the sake of votes is happy to keep the citizens ignorant of scientific findings.
Indian culture right from ancient times has recognised the presence of homosexual tendencies in men and women. It has also found reference in Hindu scriptures and texts. It was tolerated as the practitioners were also expected to fulfill their family duties.However with coming of Islam and later on the British the liberal Hindu society found itself imprisoned by their beliefs culminating in the incorporation of Section 377 in the IPC. Thus they were treated as law breakers and subject to harassment by police and others. With the advancement in science and the recognition by advanced countries that they have equal rights as other citizens awareness about their plight in other countries grew.
The LGBT community in India also raised their voice and finally succeeded in getting themselves decriminalised by the Delhi High Court order which the status quoists challenged and succeeded in getting the Supreme Court restore the Section back. The poor LGBT are back at square one
However their is a silver lining of hope. There is a growing awareness in the country that Parliament should legislate in their favour a law which treats them at par with others irrespective of their sexual preferences and orientation. The sooner it happens the better. What is ironical is that the British gave us this law in 1861 but have themselves liberalized their laws ages ago.
When oh when shall we be proactive rather than all the time being reactive and out of tune with our own citizens hopes and aspirations.
Vikram Seth the famous Indian author has put it beautifully ;
"Some men like Jack / and some like Jill; / I'am glad I like them both; but still... / In the strictest ranks / of Gay and Straight? What is my status? / Stray ? or Great?"
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