Today, on 11th December 2013, the Hon’ble Supreme Court gave the ruling in a much awaited case, i.e. the NAZ Foundation Case; a case which has been sparking debates ever since the suit was filed, and more so after the Hon’ble Delhi High Court in this case declared Section 377 of the Indian Penal Code to be partially ultra-vires. A great deal to the disappointment of the homosexual couples in India and also the LGBT right activists and supporters, the Supreme Court’s decision of setting aside the High Court’s order, and criminalizing homosexuality once again, came as a massive let down.
Much like various other people who consider themselves progressive in their thoughts and actions, I too was hugely disappointed with this ruling which prima facie shows the regressive attitude of our society and comes as one plummeting us back to the Dark Ages. After all, how can we claim to be a nation accepting all kinds of diversity, if we deny people the very basic right of choosing their partners; however objectionable it may seem to our heterosexual sensibilities.
But, on deeper thought, a contrary opinion occurs to me regarding the correctness of this decision and a part of me accepts it to be appropriate. This definitely is not because I have some issues regarding someone’s different sexual preferences or that I am moral policing around; not in the least. I am not saying that I agree with the grounds that have been given for setting aside the High Court’s order; for whatever I have come to know, I fail to find myself in sync with it. In fact, many of the reasons are not what I would have expected from an institution as high as the Hon’ble Apex Court. What triggers my changed outlook is the fact that in my view the laws regarding sexual preferences and sexual molestation are defective in their very basics.
To think of it, in today’s world, we can come across news articles regarding forced sexual molestation of men by other men…..and there would definitely be cases where women might be sexually offending other women, children (both male and female). I agree it is disturbing to think that women could commit such grossly deplorable act; but we must not rule the possibilities. What is to be looked into is that the penal code does not classify such offences being committed against men or being committed by women as rape. In such cases, the only redressal the victims of such offences can achieve is through Section 377 which talks about unnatural offences; otherwise these cases would go unnoticed and unpunished.
Therefore, before decriminalizing S377 what needs to be done is making rape laws gender neutral and coming to terms with the fact that men can be victims of sexual assaults too and they need equal protection of law. Unless this step is taken, and Section 377 is decriminalized without such change in the rape laws the male victims of sexual assault would have no remedy available to them.
Another thing which can be done is adding a provision in Section 377 itself, that if the intercourse happened with the consent of both the parties, it would not amount to an offence. Consent, which is currently not seen as an important factor with regards to S377 needs to be given weightage in deciding the cases.
The Apex Court has correctly laid the decision in the legislature’s hands regarding the legality of Section 377, whatever be the reasons provided for the same. It now falls upon the legislature to take a strong stand and decriminalize homosexuality as and when practiced by two consenting adults. Homosexuality in my firm belief is not something which should be considered illegal, violative of the law of the land and of the nature, and is definitely not something which is criminal enough to be punished with life imprisonment or imprisonment for 10 years (as per the current statute). Unnaturality is a law of the nature itself and it needs to be acknowledged and understood; criminalizing it is in itself committing an offence and robbing people of the right to live with dignity, the right to equality before law and the right to privacy.
Hence, I would say that keeping in mind the unavailability of another forum to tackle with sexual offences against men; it is only considerable that Section 377 be kept criminalized for the time being. What needs to be seriously pursued though is achieving a mechanism which accepts gender neutrality in terms of sexual offences and after this is achieved legalizing homosexuality. It might not be the best possible statutory provision…..but it definitely is the only option available to us at the moment to protect those who become victim to such activities, and are forced into it without consent.
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