Of Cabbages and Kings

September 26, 2008

Judging 377

Most progressive countries in the world have reached a stage where they have formalised gay unions and given homosexual couples most of the rights that heterosexual couples get from marriage.

In India, we are far far behind. Section 377 of the Indian Penal Code has long been used to arrest and harass homosexuals. The words used in Section 377 are:

 

Section 377. Unnatural offences

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 term which may extend to ten years, and shall also be liable to fine.
Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

It is odd. If you just read the text of section 377, you may not find anything amiss. “Against the order of nature’ could mean anything – it would depend on what you construe as the order of nature. So to me for instance, intercourse between consenting homosexual couples would be entirely within the order of nature (as opposed to marital rape which is not recognised as rape in the eyes of Indian law).  However, as all lawyers and many other know, statutes are rarely restricted to their actual text and they come with all the baggage heaped onto them from years of interpretation by the judiciary. And the Indian Judiciary has managed to stuff anal, oral and thigh sex into its definition of acts against the order of nature.*

In 2001, the Naz Foundation filed a writ petition in the Delhi High Court challenging the constitutional validity of secton 377 as it currently stands, and asking that the section be read so as not to prohibit homosexual relationships. The case has come up for hearing recently. The home ministry is insisting that one of major reasons against decriminalising homosexuality is that such a move would lead a rise in HIV and AIDS cases. This is a pretty funny sort of stand to take, especially given that the health ministry is in favour of decriminalisation for the same reason – it would reduce vulnerability to HIV and AIDS

Fortunately, the judges seem to be responding well to the arguments raised by the Naz Foundation in the petition. Perhaps the High Court will have the good sense to do something about this utterly ridiculous law after all…let us keep our fingers crossed.

Aside: Those interested in how irresponsible the media can get might get some pleasure out of comparing the CNN-IBN report of today’s hearing with Siddharth Narrain excellent piece (in the Indian Express)

* The Supreme Court seems to have defined intercourse in the order of nature as vaginal sex and nothing else. I’m going to have to check up on this but assuming that this is so, all non vaginal sex is currently criminal and punishable under law! So there you go, all you heterosexual followers of Vatsayana.
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