Editorial. Subbarayudu G Kameswara. December XXI. XIII
Homo-Sexuality and Section 377 of the Indian Penal Code
By Subbarayudu G Kameswara
I was attending a perfectly legal marriage of a handsome gentleman and a vivacious young woman, sanctified by Civil, Church and Arya Samaaj systems, enjoying the vibrant colors, energies, rituals and the rich fare for the tastebuds, when, it seems, the Supreme Court of India struck a blow on behalf of tradition and against homosexual relationships. Section 377 of the IPC holds sexual acts against the order of nature as criminal, actionable and punishable.This an ‘old law’ going back to the mid-19th century, enacted by the British (indeed which Indian law ,isn’t!), though it can not possibly be as old as Manu’s Law or Islamic Law.
There are hundreds of voices raised against this ‘regressive’ judgement and prominent have been the voices of the hand that rocks the Indian cradle rather jerkily and the prince who finds comfort in the cradle though he should have long outgrown it . Many have decried the judgement , without actually being in contempt of court, bemoaning the presentation of a barbarous and undemocratic face of the nation to the world.
I am concerned; especially because I had in recent months written a note on the Madras High Court judgement which upheld live-in relationships as equal to ritual marriages, and confer legal rights of women who have ‘consummated’ the relationship consensually, but on whom ‘law’ did not confer rights because no formal rituals have sanctified the relationship. The Madras High Court held, sexual consummation as complete and sufficient grounds to treat a live-in relationship as equal to marriage, relying on the ’purpose’ of marriage, which is sexual consummation IN the order of nature. As recently as ten days ago, it was published as an editorial in this webszine.
One could, perhaps, look at the ruling on section 377 of the IPC in view of the Madras HC judgement? Let me preface the discussion with a sample culled from the social media.
Some very incisive discussions have been underway on facebook ( fb). Alok Tiwari, Vineeta Pandey, Jayaprabha Anipindi have been in the thick of the debates with some very balanced, intelligent observations. Pandey and Tiwari spoke about the social space for consensual action which does not infringe upon another’s legal rights (having a society where adults can undertake relationships that do not hurt the rights of others even if a majority does not approve of it. Should the law forbid it? No….I may be personally against a [kind of] relationship but would still want that freedom to exist in society.) Jayaprabha interrogated the very concepts of ‘natural’ and ‘unnatural’ (other than reproduction purpose, what is there … special in hetero sexuality?.... nothing is " natural " if you want your own children then you need a male [or a female]. but IF they dont want to produce children … just they want to live like a couple , why should it bothers us? Its an individual choice. We should learn to respect it. Everyone has a right to live according to their choices & preferences…. these choices are as old as human race !).
The most outstanding views came from a young woman answering to the name of Sudha Veturi who spoke with calm authority about freedoms due to consenting adults and the illogic of clubbing bestiality with homosexuality under IPC ( It is bizarre to compare homosexuality with bestiality. The fact that 377 clubs these together baffles me. The words "consenting adults" are key here. Also, if left at peace, homosexuals can lead fulfilled and healthy lives... It is downright inhuman to deny people their fundamental rights, period..) She was categorical in asserting that “Social equilibrium has not been lost in countries where it has been legalized, after all.”
Consensual, hetero-sexual relationships in the order of nature, according the Madras HC’s considered view, are legally valid grounds for conferring rights on women, and presumably the offspring of such relationships, regardless of the absence of ritual sanctification of any nature, whatsoever. This is excellent news empowering women in no uncertain terms. What could potentially be criminal and violative of women’s rights has been firmly handled by a visionary court of law. What about the rights and freedoms of consenting adults who choose to express their sexuality in acts ‘repugnant’ to ‘natural order’?
‘In the Order of Nature’ seems the expression that defies precise , logical explanation and definition. Consensuality is definable, but order of nature is completely beyond the scope of definition consistent with legal requirements. Nature’s reproductive need is managed in asexual ways as well, as any basic awareness of life sciences will confirm to us. Sexual differentiation is only part of Nature’s experiments with regenerative truths. It does not constitute the limits of human sexuality.
Human sexuality goes beyond reproductivity… it involves imagination and invention as a pleasure-principle - while reproduction is a cyclical order, sexual activity in the homo sapiens is not cyclical as in the case of most living species. ‘Self-gratification’ or swayam-sukha (hasta- skhalana is not close enough since it appears to exclude women’s self-gratification modes) is a common practice which cannot attain the stage of reproductivity, NOR can it, therefore, be without merit in a completely personal sense. Self-gratification carried further shall have to be ‘protected’ hetero-sexual activity, i.e., bereft of regenerative implications. Further still is the zone of homosexuality which affords both reproductive protection and sexual gratification. Is there a clear-cut ‘order of nature’ involved in consensual acts of sexual gratification? Is hetero-sexual activity without an explicit reproductive agenda or intention in the ‘order of nature’?
Answers cannot but be in favour of sexual activity with or without reproductive intentions. In such a case, how do homosexual activities attract opprobrium and criminalization? There can only be personal preferences and culturally constructed orders but NO natural orders. Let us remember that except for the reproductive, functional assistance, nature has NOT conferred any unique features on men and women; meaning the species is homo-sexual! Unless our sexualities are homogenized, synchronized, even functionally,, we would not be an effective, growing, regenerating race. Why should homosexuality, then, be criminalized?
As the young woman, Sudha, pointed out, "Social equilibrium has not been lost in countries where it has been legalized, after all.”! So, may it be inferred that Criminalization is only a highly paranoid way of controlling possible violation of personal choices, i. e., lack of consent and/or incapacity to consent, whether statutory or under some form of duress? I'm inclined to believe that the State has no role to play in the freedoms a body chooses to exercise in pursuit of its sensory gratification ,under the proviso that there is no violation of consensuality among those parties who are deemed mentally in sound health.
This view is consistent with the ruling of the Madras High Court which foregrounds consensual consummation without any explicit directions as to the intention of such consensual acts. The SC, I’m reasonably sure, will have to look for other ways to counter violation of will in homosexual relationships. That will require a serious review of its philosophic orientation, unrelated to the practices of the ‘advanced’ nations.
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