Thursday, December 12, 2013

On Section 377 of IPC and Unnatural Sex


In July 2009, the Delhi high court had  legalized homosexual acts between consenting adults in private, by partially declaring Section 377 of the Indian Penal Code (IPC) unconstitutional and a hurdle in the fight against HIV/AIDS.

The Supreme Court held on 11th December, 2013 that the unnatural sex or homosexuality between two consenting adults under the section 377 of the IPC will continue to be an offence. LGBT comprise a miniscule percentage of the population and have been demanding right to have unnatural sexual orientation. So far, less than 200 people have been prosecuted under Section 377.

Section 377 of the Indian Penal Code states that, whoever voluntarily had 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.
This present judgement had overturned the 2009 Delhi High Court judgement that decriminalized gay sex. Some see this as a blow to liberal values and human rights.

Under the Sexual Offences Act, 1967 buggery is no longer an offence in England if committed between two consenting adults of and above the age of 21. This Act has, however been criticized even in England as negating States’ right to suppress a social vice.

Articles 14, 15 and 21 of the Constitution of India, provide for freedoms to the subject but to certain conditions, one of them being The Doctrine of Natural Justice.

As of now, "it is up to Parliament to legislate on this issue."

Amnesty International called the decision a "body blow to people's rights to equality, privacy and dignity", while a legal challenge from gay rights groups is also possible.

Natural rights is simple nonsense: natural and imprescriptible rights, rhethorical nonsense, nonsense upon stilts. - Jeremy Bentham 

Every law framed by man bears the character of a law exactly to that extent to which it is derived from the law of nature. But if at any point it is in conflict with the law of nature in ceases to be a law; it is mere perversion of law. - Locke

The American Declaration of Independence states that it was 'self evident' that every human being has 'certain inalienable rights'. In 1879, the French Declaration of 'rights of man' asserted that 'men are born to be free and equal in rights'.

Relatively recent was the adaptation of UN Declaration of Human Rights, 1948.

While the debate on viability and definition of Human Rights goes on some glaring examples of underline flaws in our understanding of the broader issue. Since, abortion is illegal in the Republic of Ireland, last year an Indian doctor - Savita Halappanavar, died during miscarriage. 

The current issue of denying a section of our society from following their free-will in the matter of person choice about their sexual orientation, is no less severe. The law, by deciding what is to be considered as natural and unnatural in the matter of sexuality of the people, is setting up bad precedent. Several countries have accepted LGBT as a section of society, equal to all other members in all respects.

We cannot make a section of our society untouchable. We cannot force a person, who was so far a transgender to try change her sexuality.

The Supreme Court's judgement needs to be reviewed and there is a need of assuaging the fears of all our friends whose life is being infringed upon by such harsh judgement.

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