Homosexuality
And 377 IPC
A
judicious, situational and factual analysis
In a long-sought
victory for the gay rights movement, the Supreme Court ruled by a 5-to-4 vote on 25th
June 2015 that
the Constitution guarantees a right to same-sex marriage
Justice Kennedy was the author of all three of the Supreme
Court’s previous gay rights landmarks. The latest decision came exactly two
years after his majority opinion in United States v. Windsor, which
struck down a federal law denying benefits to married same-sex couples, and
exactly 12 years after his majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.
Resent
USA Supreme Court judgment has brought
377 IPC again in light. The Supreme Court of India turned down high court (HC)
judgment on consented homosexuality. Hence, article 377 was in limelight.
Supreme Court (SC) judgment gave a big space for debate on this issue. Indian
conditions support SC judgment under current situation. In future, it
may, but situation is not ripe for any change in 377 at present. Health,
social, cultural and natural facts, and situations don’t permit any
interference in it as of now. Article 377 protects our culture, moral, natural
sexual habit, and keeps generation going.
Naz
Foundation, a Non Governmental Organization (NGO) in a Public Interest
Litigation, challenged the constitutional validity of Section 377 of the
Indian Penal Code, 1860 (IPC), which criminally penalizes what is described as
“unnatural offences”, to the extent that the said provision criminalizes
consensual sexual acts between adults in private.
The
challenge is founded on the plea that Section 377 IPC, on account of it
covering sexual acts between consenting adults in private infringes the
fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the
Constitution of India. Limiting their plea, the petitioners submit that Section
377 IPC should apply only to non-consensual penile non-vaginal sex and penile
non- vaginal sex involving minors
Article
377 says Unnatural Offences - 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 a term
which may extend to ten years, and shall also be liable to fine.
The Delhi High Court passed a landmark judgment holding
Section 377 to be violative of Articles 21, 14 and 15 of the Constitution,
insofar as it criminalised consensual sexual acts of adults in private. Hence
writ petition was allowed on July 7, 2009.
In an appeal, SC in its judgment on December 11, 2013 allowed
appeal and set aside the HC judgement. This pronouncement brought 377 into
debate. This issue affects and associates with our social, cultural, biological
(medical) and political sentiments. Hence, both supporters and opponents are
giving their own logic to prove their cases.
Political classes are divided. Congress supports it.
Congress president Sonia Gandhi said in a statement, in a rare reaction to a court
order “I am disappointed that the Supreme Court has reversed the previous High
Court ruling on the issue of gay rights. The High Court had wisely removed an
archaic, repressive and unjust law that infringed on the basic human rights
enshrined in our constitution”.
After
keeping mum on the issue for some time, BJP cleared its stand on it. In an
interview to The Telegraph, BJP President Rajnath Singh said, "We will
state (at an all-party meeting if it is called) that we support Section 377
because we believe that homosexuality is an unnatural act and cannot be
supported."
Newly
formed Aam Admi Party has opposed the SC judgement. The Samajwadi Party has
made it clear that it will oppose any amendments to Section 377 if it comes in
Parliament for discussion. Party leader Ram Gopal Yadav said,
"Homosexuality is unethical and immoral, it is against the culture of the
country and we will fight it."
A
blog “The spark and the blame” has given medical and moral reasons against
same-sex practice. There is substantial evidence that homosexual practice is
harmful. A few are summarised below.
Promiscuity
and short-short term relationship: homosexual behaviour involves what a writer
called “an almost compulsive promiscuity.” 75 % of homosexual men have had more
than 100 partners in their lifetime, most of them strangers. A Los Angeles
study found that male homo averaged over 20 partners a year. Lastly, only 7-8%
of homosexual men and women have ever had relationships lasting more than three
years. This differs vastly from heterosexual practice. As Schmidt writes
“Promiscuity among homo is not a mere stereotype, and it is not merely the
majority experience- it is virtually the only experience.”
Increase
incidence of drug use: researchers report higher rates for drug and alcohol
abuse among same-sex practicing. They are more likely to use marijuana
(89% vs 2% of hetero), cocaine (50% vs6% of hetero), and poppers (72% vs 2% of
hetero). Another Boston study from 1985-88 supports above facts.
Physical damage and complications: men and women bodies are designed for sexual
intercourse with each other in a way that men bodies are simply not designed
for sex with other men and the consequences are often physically traumatic. As
a result, practising homosexuals are at greater risk of prostate damage, ulcers
and ruptures, and chronic incontinence (Schimidt118)
Sexually
transmitted diseases and AIDS: Besides physical trauma, many viral and
non-viral infections trouble the homosexual populations. Non AIDS diseases
include amebiasis, syphilis and hepatitis B (65% of homo men) affects
badly. The 75% STD incidents rate among homo is remarkable. This is to
say little of the AIDS epidemic to which homo men are especially vulnerable. A
Canadian study found that half of people living with AIDS are homosexual men.
Lower
life expectancy: As a consequence of these medial issues especially the AIDS
epidemic, homo men have a life expectancy that is significantly lower than
heterosexual men. One Canadian study acknowledges it.
Increased
incidence of mental illness, depression and suicide: homosexuals suffer from a
severely higher incidence of some types of mental illness, especially depression
and suicide. Schmidt finds that 40% of homo men have a history of major
depressive disorder compared to 3% of men generally.
Dr.
John R Diggs, Jr. in his write-up ‘The Health Risks of Gay Sex’ has cautioned
the youth. He says it is clear that there are serious medical consequences to
same-sex behaviour. Identification with a gay, lesbian and bisexual community
appears to lead to an increase in promiscuity, which in turn leads to a myriad
of STD and even early death.
Social
impacts of homosexuality are not good. Domestic violence, child
molestation are more common in homosexuals than in heterosexuals, even children
of lesbian or gay parents are also sensitive to complex sexual behaviour . On
academic ground too they are not at par with their heterosexual counterparts.
One
can say that this problem is due to their discrimination with heterosexuals in
society but these facts are reported from places where gay marriages are legal
like in Netherland and Sanfransisco. Most important thing is that it disturbs
the basic building block of society i.e. family. Homosexuality has become a
major force that tears down society and harms our culture.
There
is a misconception that being gay is an innate characteristic which cannot be
changed but researches shown that there are abundant cases where this sexual
orientation is changed by appropriate psychological treatment and also with the
support and ethical guidance. If something affirm their homosexual behaviour,
there are few chances that they could ever overcome from there complex sexual
orientations.
It
is also important to mention the fact that everything is not permitted in the
name of freedom of rights. Youth should be warned of the undeniable health
risks associated with a homosexual lifestyle. Worldwide scenario reveals
that while fifteen countries have legalized gay marriage and another
three allow it in some areas, homosexuals remain persecuted in many parts of
the world.
India
is well cherished democratic country. Most of the decisions are taken on
majority basis. Roughly a gay population is estimated about 25 lakh. Amending
law 377 IPC for a big minority is against the concept of democratic wishes. If
it is done, then it will disquiet the majority 99 %. It will infringe in their
moral, social, political and bio- medical sentiments and ethics directly or
indirectly.
The highest Indian Court has favoured status quo. This complex issue is getting
fast favour to amending it. It is assisted by the spill over effects of the
developments worldwide on this. Inspite of all supportive progress on this
matter, our SC sees that all ground realities are not favouring it in current
Indian situations.
Therefore,
it maintained the originality of 377. Social, political, moral, physical and
medical grounds are not ripe for any change in judicious evaluation. Hence, now
it is left to our public leaders to assess the situation and act accordingly by
a legislative step.
Heera Lal(Views are personal and based on different sources
)
Ref:
23. http://indiatoday.intoday.in/story/gay-population-25-lakh-7-per-cent-hiv-infected-govt/1/177647.html
24. http://timesofindia.indiatimes.com/india/Gay-sex-remains-illegal-as-Supreme-Court-refuses-to-review-ruling/articleshow/29515452.cms
15http://timesofindia.indiatimes.com/world/uk/Gay-couples-marry-for-first-time-in-England-and-Wales/articleshow/32912562.cms
16http://timesofindia.indiatimes.com/home/stoi/all-that-matters/Indian-men-are-having-a-tough-time-dealing-with-the-sexual-revolution/articleshow/32939321.cms
15http://timesofindia.indiatimes.com/world/uk/Gay-couples-marry-for-first-time-in-England-and-Wales/articleshow/32912562.cms
16http://timesofindia.indiatimes.com/home/stoi/all-that-matters/Indian-men-are-having-a-tough-time-dealing-with-the-sexual-revolution/articleshow/32939321.cms
27.
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