Being human

Why decriminalising Section 377 of the IPC will not open the floodgates of immorality

Whether we like it or not, our disdain for television talking heads while perfectly valid aesthetically does not take away from the fact that the often crude and nearly always Mickey Mouse arguments on any issue we are treated to on a daily basis are more often than not a truer reflection of the mood of the nation than we would like to admit, living as many of us do in our bubbles of privilege and engaging with society mainly in echo chambers.

So, when on television channel after television channel traditionalists from all major communities display their discomfiture, though its degree varies, with the Supreme Court’s welcome decision to re-examine its December 2013 decision which declared same-sex intimate relations to be a crime categorised as “unnatural sex” (along with other forms of sexual relations) under Section 377 of the Indian Penal Code, we must counter that argument in an idiom that is intelligible to its proponents. There is, after all, no point in winning a right, in this case de-criminalisation of consensual gay sex between adults if and when that happens, and subsequently complaining that society at large is preventing one from exercising it. To do so, one must take on the two broad stands of those against decriminalisation: First, that it will provide a fillip to all manner of unspeakable bestiality and secondly, that the propagation of the human species would effectively come under threat if the “natural order” of male-female sexual relationships is not upheld.

The whole point of decriminalisation of gay sex is to end its Abrahamic religions inspired and Victorian morality infused classification as being “unnatural” and equating it with, for example, sex with animals and thereby bestiality. The crucial difference is one of human agency — we must clearly limit our advocacy of decriminalisation to same-species sexual relations, in private and between mutually consenting homo sapiens who have attained majority. Of course, anal/oral sex whether same-sex or heterosexual also must come under the decriminalisation rubric, again between consenting adults in the privacy of their bedrooms.

As for sex with underage individuals, i.e. with children, that is statuary rape and must continue to attract the harshest penal provisions regardless of whether the sexual assault is heterosexual or homosexual. Linked to these factors is the need to promulgate a separate law against incest as none exists specifically criminalising it. The ‘end of the species’ argument needs to be countered a little differently. For, the most important contribution of the decriminalisation of consensual gay sex relationships, which will hopefully eventually lead to legalising gay civil unions, would be to encourage stable, committed and caring same-gender relationships which would naturally include the desire to adopt and raise children. Would it not then be in the interest of gay couples to be the most vociferous champions of heterosexual fecundity so they are not left without holding the baby?  

There is a long way to go before any finality on the issue is achieved, of course, but those arguing for reading down of Section 377 IPC as far as it relates to same-sex relationships between consenting adults have been encouraged by the terms on which the apex court has admitted the Public Interest Litigation filed by five affected citizens; the Court will go into the matter from the perspective of an individual’s autonomy and privacy following the nine-judge Bench decision on the right to privacy being a fundamental right as part of the rights flowing from Article 21 (right to life and personal liberty) of the Constitution. The petitioners have argued, that in this context, Section 377 IPC has the potential to “destroy individual autonomy and sexual orientation.” The Court, while admitting the petition, iterated: “Any individuals or section of people who exercise their choice should never remain in a state of fear.” Given the portents, hopes that the inclusiveness of the Indic civilizational ethos will reflect in extant law on this issue have certainly been raised.