Sunday, December 15, 2013

Alternate Sexuality is No Crime



Article 377 of Indian Penal Code dates back of 1861. The article deals with sexual behavior that is different from commonly accepted man woman relationship. According to this article, people belonging to Lesbian – Gay – Bisexual – Transgender (LGBT) community are liable to be prosecuted and sentenced to jail term.  In 2009, Delhi High Court bench of Justice Shah and Justice Muralidhar had decriminalized same sex consensual activity stating that the article violates article 14 of the Indian Constitution that states every citizen should have equal opportunity in life and is equal before the law. Recently, on December 2013, Justice Singhvi and Justice Mukhopadhaya of Supreme court have upheld the validity of article 377. The two judge bench have directed legislators to change the law if society thinks such an article is not acceptable.




However, a nation wide debate has started. Those oppose the supreme court judgement claim,
1. People of LGBT community may go / remain underground
2. People already declared their alternate sexual orientation may lose their job / business
3. The effort on treatment of sexually transmitted diseases like AIDS will bear a body blow
4. Members of LGBT community will most likely be harassed by corrupt police force to extort bribe. Those unwilling to pay bribe may be framed in false case
5. There is a sizable population of people belonging to LGBT community ranging from 1 – 10 million in India alone. There may be more as people are afraid to come out in the open.

Those favoring a ban on LGBT community, argue :
1. The activity practiced by this group is unnatural. Such activity goes against the law of god and law of nature.
2. Treat LGBT phenomenon as a disease and treat it.
3If we accept LGBT community to be distinct and have law favoring them, should we tomorrow have separate laws for pedophiles and necrophiles, for example? 
4. People representing this community constitute a miniscule section of Indian population.
5. In last 170 years since the inception of the law, hardly 100 – 200 people have been prosecuted under the law. Thus the fear of law being misused is ill founded.

Those arguing unnatural nature of gay sexual behavior and advocate sex is for procreation, forget that human sexuality may not be purely for procreation. Humans have option to abstain from sex. If we extend the analogy of abnormality a bit more, we may be forced to acknowledge sages, saints, and seekers who abstain from sex for spiritual quest, are abnormal. Yet, society revere them. Similarly, building a dam, treating illness, predicting natural calamity etc or for that matter any technological progress may also be considered to be anti-god and anti-nature. 

Our understanding of biological sciences has improved over last fifty years. It is generally accepted homosexual behavior is more genetic than acquired. Although it is a matter of debate and to prove a scientific hypothesis conclusively it takes experimentation using different approaches, it is emerging that neuro-biology in homosexuals may be different.

Some argue that if we agree to a set of law for homosexuals, then we may have to make similar concession for pedophiles and necrophiles also. However, we forget that key point in our discussion on article 377 is consensual sex between two adults. In case of pedophilia this concept is violated because victim is not an adult. In case of necrophilia, victim is dead. Same law cannot be extended.

Finally, I think one may have distinct sexual preference, but that uniqueness does not make anyone criminal.

http://en.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_Code

Tags: Gay, Lesbian, Bisexual, Transgender, LGBT, Supreme Court, High Court, Article 373, Indian Penal Code, Indian Constitution
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