By Harshit Pande
Bhagwata Purana mentions an incident where Shiva hearing of Mohinis (an avatar of Vishnu) beauty goes to Vishnu and requests him to reveal the form. Vishnu accedes. Mohini of good sense robs Shiva who is overwhelmed by Kama. He runs behind her and his seeds spill. And Vishnu is male. And I have stated the facts.
We are a civilization that celebrates sexuality. Kama (sensual pleasure) has been enlisted as the third goal of human life. Visit Konark and Khajuraho and you will certainly understand how things were.
The Right Honourable Lord Macaulay was a wise English gentleman who thrived in the Victorian world. He happened to be the chairman of the First Law Commission, which drafted the Indian Penal Code of 1860. Whereas once the British themselves revelled in the crumbling principles of Indian liberalism in sexual matters, the IPC introduced the traditional Judeo-Christian perception of morality. And hence began the era of stigmatization of Indian sexual liberalism which continues to this day, a hangover that needs getting rid of.
The Supreme Court of India on December 10th, 2013 reversed Naz Foundation judgement of the Delhi High Court that decriminalized homosexuality. With this, the inherent constitutional tenet of inclusiveness was belittled. India prides over its diversity, and exclusion of a sexual minority and criminalization of the identity is certainly a setback to its reputation. Section 377 of the IPC has been a subject of much discussion over the past weeks. The fact worth noting is the lack of consent in the section. Another noteworthy fact is the indifference of the legislators and the possibility of the issue becoming a political one aimed at creating vote banks.
India being a common law country derives its laws from the English system. The history of the subject of homosexuality indicates that sodomy was criminalized in England. The source of this fact- Fleta, 1290 and Britton, 1300- prescribed that sodomites should be burnt alive. The Buggery Act of 1533, which was re-enacted by Queen Elizabeth I, penalized sodomy by hanging. This became the charter for consequent criminalization of sodomy in British Colonies. In 1817, the buggery was redefined to exclude oral- genital sexual act. Finally in 1861, the death penalty for buggery was formally done away with in England and Wales. However, sodomy or buggery remained as a crime “not to be mentioned by Christians.” In the postcolonial era came the Sexual Offences Act passed in 1967 which decriminalized homosexuality and acts of sodomy between consenting adults (above age of 21) in accordance with the report of Wolfenden Committee. Logic says its time for India to modify its laws (should have been done long back).
The nature-nurture debates on homosexuality have spanned decades without a satisfactory conclusion. The believers of the existence of a gay gene as well as those familiar with the works of Sigmund Freud agree on one point: sexual orientation is beyond conscious control. But the question that arises is a question of principles- why should it be controlled? Humans have a right to expression and sexuality IS a form of expression. The existence of homosexuality is an undeniable social fact, so it would do well to accommodate. The Delhi High Court had previously observed that popular morality is no ground for denial of the right preserved under Article 21 of our constitution. Just because a lot of people think that it is immoral for a man to have sexual relations with another man does not mean the man will be denied the right to live the way he wants.
Honourable Justice Singhvi, in the December 10th judgement, mentioned that section 377 of the IPC is violative of Articles 21, 14 and 15 and that the provisions of the Section will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. Final word for the law makers- what will actually be immoral will be turning the issue political. Its about time.
The author is a first year student at National Law University, Odisha pursuing a B.A. L.L.B degree. Is keenly interested in sociology, psychology and history, though finds time for literature and philosophy. Loves to read, and at times writes. Is a firm libertarian. Feel free to contact him at harshitp23@gmail.com