Millennium Post

Section 377

Lok Sabha Member of Parliament Shashi Tharoor on Wednesday introduced a private member’s bill, which seeks to amend the draconian Section 377 of the Indian Penal Code. Section 377 criminalises homosexuality. The amendment bill will be brought up for discussion in the Parliament on December 18. What the bill seeks to achieve is the decriminalisation of sexual intercourse in private between consenting adults, irrespective of their genders. It also drops the phrase “against the order of nature” from the text of the current provision. As is well-known, Section 377 is a colonial-era law that criminalises all penile-non-vaginal sexual acts in the garb of prohibiting “unnatural offences”. Be it noted that though it applies to both heterosexual and homosexual persons, only homosexual men and transgender persons are targeted. The law is rooted in the Judeo-Christian religious morality that abhorred non-procreative sex. Lacking precise definition, Section 377 has become subject to varied judicial interpretation over the years. As a result, it has been used as a tool by the police to harass, extort and blackmail homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalised for sodomy. The stigma and prejudice perpetuated a culture of silence around homosexuality and resulted in denial and rejection at home along with discrimination in workplaces and public spaces. The Delhi High Court decision in 2009 had decriminalised adult consensual dignity for sexual minorities, while the judgment of the apex court in upholding the colonial-era law has brought back the period of fear and distrust amongst them. From harassment to freedom to fear, the journey of Section 377 could possibly take a new turn. However, it would be foolish on our part to expect the current Parliament, embroiled in one political confrontation to another, to entertain this long-needed amendment. Although, late last month, Union Finance Minister Arun Jaitley had said that the apex court judgment on Section 377 was incorrect and that “at some stage, they may have to reconsider”. Earlier this year, the United States Supreme Court had legalised gay marriage everywhere in America. “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is to not be condemned to live in loneliness, excluded from one of the civilisation’s oldest institutions. They ask for equal dignity in the eyes of the law,” the US court had said. Ultimately we as a country have to decide whether we want to emerge as a liberal, pluralistic nation or a close-minded bunch. Suffice to say, Section-377 has to go.  It’s time India stepped into the 21st century.
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