In the year 2009, the Delhi High Court delivered a landmark judgement, believed to be one of its greatest till date, which abolished Section 377 of the Indian Constitution, thereby giving the Lesbian, Gay, Bisexual and Transgender (LGBT) citizens of this country their fundamental right to ‘Protection of Life and Personal Liberty’ and ‘Right to Equality’ which constitutes Article 21 and 14 respectively of the Constitution of India.
Towards the end of the year 2013, the Supreme Court reversed that judgement.
The LGBT community in India has been persecuted, harassed, discriminated against, often molested and beaten for their apparent “sexual deviance”. Their Right to Life, one of the seven Fundamental Rights of the Indian Constitution, has been violated and snatched away from them. For many, this is not their first fight, possibly not even their hardest battle; that would be when they have had to come out of the metaphorical dark and suffocating closet to face society.
Section 377 needs to be abolished. It not just criminalises sex between man and man and woman and woman; it also criminalises oral sex, between consensual adults. It states that the same is “against the order of nature”. What we believe to be the “order” of nature is, in itself, a social construct! How patriarchal is it to assume that one can only achieve “pleasure” by inserting oneself in a woman? How autocratic is it to determine that giving or receiving oral sex is against the law? How oppressive is it to deny us of our freedom of choice? If one does not have “personal liberty” in the bedroom, the most private of all spheres, then where does one have it?
“Homosexual acts” are punishable by up to the period of 10 years in prison. What is even more worrying, however, is the message that today’s LGBT youth is getting regarding their self worth, as they are now deemed “less than equal” and a criminal in their own country, in the words of Human Rights Campaign Chief Foundation Officer, Jeff Krehely. Section 377 not just imposes upon the rights of the LGBT community, relegating them to be second class citizens; it also imposes upon the sexual freedom of the non-LGBT community.
The question today all of us have to grapple with is whether homosexuality should be decriminalized or legalized. Decriminalizing homosexuality would mean that it no longer remains under the ambit of the law, is no longer considered harmful, and therefore need not be a matter to be addressed by the criminal justice system. Legalizing it, on the other hand, would mean that it falls within the jurisdiction of the Rule of Law. As a result, the state then has the freedom to impose penalties and restrictions on it, and negative factors like coercion and oppression can come into play.
And then, if the law permits homosexuality, will society?
By Aarushi Maheshwari