Let's become kind, to the kind!

Chapter XVI, section 377 of the Indian penal code dating back to 1851, introduced during the British rule of India, criminalizes sexual activities “against the order of nature” including homosexual acts. But the nation is finally heading towards decriminalizing section 377 as SC starts hearing. A five judge constitution bench led by Chief Justice of India ‘Dipak Misra’ is working on this and raising hopes among those who challenged IPC section 377.

This blogpost covers four key points essential to the understanding of homosexuality and section 377.

1. Introduction to LGBT                                                                    

2. Reasons behind one being a homosexual?

3. Why is it a crime?

4. India heading towards reforms

Here we go:

1. Introduction to LGBT community: so basically, there are two main factors that play an important role for every human being

1. Gender identity 2. Sexual orientation

Talking about gender identity, gender identity is how you wish to identify yourself, with which gender. Eg. If a person who is a male (sex), but feels like a female internally i.e. relates to the characteristics and attributes associated with a female, or vice versa, that person is a ‘transgender’. This represents the ‘T’ of the LGBT community.

Talking about sexual orientation, your sexual orientation is your attraction towards people of a particular sex. Below are charts that will give you a lucid understanding of sexual orientation.

                    

                                                                                                               

                                                                                        

In simple words, a male attracted to male is ‘gay’. Female attracted to a female is ‘lesbian’ whereas a male attracted to both male and female OR a female attracted to both male and female is a ‘bisexual’ A female attracted to a male or vice versa is a ‘heterosexual’

2. Reasons behind one being a homosexual:

Roughly speaking, 99% of people we see around us are heterosexuals, then how do homosexuals happen to be?

Well, there are two main reasons leading one, become a homosexual.

 1. Conditional 2. Unconditional

Talking about conditional circumstances, they refer to reasons like depression or loneliness that results of one being a homosexual. But conditional homosexuality is for a short period of time and temporary. Hence, conditional homosexuals fall under bisexuals. But there are a plethora of cases and research that state a person will permanently exist as a homosexual due to the influence of social and environmental factors.  

Talking about unconditional homosexuals: there is no biological or genetic difference found in homosexuals and heterosexuals after abundance of research. But, according to Ray Blanchard, a professor of psychiatry at the ‘university of Toronto’ states:

As already known, there is Y chromosome in males. Male fetuses have a male-specific protein called ‘H-Y antigen’ carried by the Y chromosome. H-Y antigen is responsible for the sexual orientation (specifically heterosexuality) of every human being. When a fetus grows in the womb of mother, due to some activity if excessive pressure is experienced by the baby (fetus), the H-Y antigen loses its functionality and the ‘be straight’ signal will never flick the brain of the child. There’s no trace of research that would 100% confirm any reason of one’s being a homosexual.

3. Section 377 and why is homosexuality a crime?

Section 377 of the IPC states, “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.”

In 1533, British government introduced the ‘buggery act’ which stated that sex against the order of nature is a crime. (order of nature: peno-vaginal sex is natural) ( against the order of nature: anal sex with man, woman or animal. And sexual activities between member of same sex). This colonial era law was enacted by the British government in India in 1861.

4. India heading towards reforms:

In 1991, ‘AIDS bhedbhav virodhi andolan’ started Publishing reports and articles on discrimination happening against homosexuals (specifically gay). Early organizations like ‘sakhi and ‘sangini’, also protested against discrimination happening to lesbians with forums like LBT (lesbian, bisexual, transgender)

In 2001, NAZ FOUNDATION filed the first important petition challenging the constitutionality of section 377 but the court dismissed the case in 2004, saying that none had been punished under section 377 yet and such people exist in minority. But after the petition gaining a lot of support from LGBT activists and organizations, the case was again heard in 2009 and Delhi HC gave a landmark decision decriminalizing section 377 as it contradicted and violated article 14 (law of equality), article 15 (prohibition of discrimination on grounds of religion, sex, race, caste or place of birth) and article 21 (life and personal liberty)

But, the major U-turn was in 2013, when ‘Suresh Kumar’ with 15 others filed a petition against the decriminalization countering that article 14, 15 and 21 are valid when the case refers to a ‘group of people’ and homosexuals contribute only 0.3% of Indian population. The ‘Review Petition’ filed by ‘Naz Foundation’ was dismissed. Delhi high court recriminalized section 377.

Finally in 2017, when Naz foundation filed a ‘Curative Petition’, T S Thakur – 43^rd chief justice of India, favored the petition substantiating with  ‘Right to Privacy’ being a fundamental right of an Indian citizen.

July 10, 2018: SC begins hearing on section 377