The Delhi High court in a landmark judgement last week struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution. However, the court was clear that “the provisions of Section 377 will continue to govern non-consensual sex and sex involving minors.” The court quoted from Nehru's own words "the theme of inclusiveness" that is so fundamental to India's constitution ie the rights of minority sect.
This ruling doesn't mean that homosexual act in india is legal, but it is not criminal. It is important to make this distinction in the judgement between decriminalising the act and legalising the act. Indian judiciary has stepped in once again when the politicians, legislatures and conservatives hesitated to act conclusively. This indicates the strength, power and fairness of the Indian constituition /Judiciary
There will be a lot of opposition especially from the conservative elements of the society. The points that are likely to be raised against this ruling are that-Homosexuality is against the law of nature (I don't know who dictates or defines 'law of nature'?), it is not according to the traditions, values, religion(s) and that the society will fall into chaos.
A persons sexual orientation or behaviour is likely to be influened by both nature and nurture; wearing my hat as a scientist I would say it's more in your 'genes than in your jeans'. ie more genetic factors combined with hormonal (pre and post natal) and environmental influences. So from a medical point of view homosexuality could a 'normal' variant (or 'abnormal' based on ones thinking)
The issue has been mentioned in various religious traditions. All the abrahamic religions(Judaisim, Christianity and Islam) believe that homosexual behaviour is sinful. In Indian religious traditions (Hinduism, Buddhism, Sikhism, Jainism) it is less clear and is seldom discussed in detail. However, rig veda says 'Vikruti Evam Prakriti' which probably mean 'what seems un-natural is also natural', and some interpret this as 'any act is natural'.
I also remember a malayalam movie in this context- 'Deshadanakkili Karayarilla'...a movie that clearly portraits the relationship between two girls (a lesbian and possibly a bi-sexual) so subtly handled by none other than late P. Padmarajan. He is so skillful and tactful in producing such a work of art during his time. This reveals his genius nature and wide variety of themes he uses in his movies.
Coming back to the subject of LGBT, a change in law doesn't change society's perception. This is a step, society may take many years to accept or follow. It would be better to debate on this subject from a social, political and legal angle rather than bringing religion into it. Most importantly what is required is an awareness, education and more open discussion.
About Me
- PCV
- London, Leicester and Kerala
- I am a Medical Doctor, born and brought up in Kerala, settled in England for last 27 years. Interested in almost any and every field under the sun. I believe in 'Simple living and simple thinking'and try to follow this principle in life...This is a snapshot of what I wish to write; but many of the things I want to write are still under the iceberg! Lokah Samastha Sukhino Bhavanthu
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10 comments:
I believe that Hinduism recognized "homo-sexuals" as "tritiya-prakriti" (of third nature). As you rightly pointed out, homosexuality is acceptable/not is up to debate.
hmm...i thght i was less of a conservative, and less of a conformer until it came to the case under discussion. shocked at the decision. i agree with you that this has got nothing to do with religion, and hope that this doesn't get flared up religiously in a country like ours! thanks for bringing up this topic, nevertheless! well, the poser in front of me is, "to gay or not to gay":)
Interesting comments...Sumesh and Mannadiar.I think in this 21st century it is primitive to penalise consenting adults for their sexual choices...but only time can tell how would the society respond at the ground level.
Can this decriminalisation be extended to other sections of the IPC also? The defense of “irresistible impulse” and “temporary insanity “can be applied to decriminalize many offenses, But in Otto Preminger’s film (“Anatomy of a murder”) the ultimate victim of this defense was the defense lawyer himself !!
“The Delhi High Court had at least 629 civil cases and 17 criminal cases pending that were more than 20 years old as of March 2008. Although, that's an improvement from April 2007 when the court had 882 civil and 428 criminal cases pending that were that old.
Chief Justice A.P. Shah said in the report (Chief Justice’s Annual report) that "it would take the court approximately 466 years" to clear the pending 2,300 criminal appeals cases alone.”
The speedy disposal of the “homosexual case” and the landmark judgement must be viewed against this background.
Thanks Mash...I can understand where you are coming from......One can argue that there was a hidden agenda behind this case...but at the end of the day we could say that Indian Justice system is picking up pace and atleast trying to dispose 'selected cases'....
the ideas of pcv are well taken. while drawing religious texts for justifying an issue like "homo", one should keep in mind that hindu religous books have little to issue guidelines on personal life, instead, hindu saints focussed on spirituality and salvation of cycle of birth -death -rebirth. because orderliness of society was taken granted in the self-actualised stage of human being. one should not forget that "kama"is foremost principle of life in hindu mythodology which is resorted to with socially rightous means for furtherenace of human race only. even over-indulgence in sensual pleasures is akin to sin. the homosexual doesnt serve the purpose of life or it belittles the first principle "kama'. it is against the order of nature because i ask one question to so called "homos"that had your father been a homo, how would you have come in this beautiful planet. the homos stand in way of furtherance of human race.the right of individual freedon is not saco-sanct, tomorrow, consented prostitution may demand legalisation. instead of prosecuting homos, they should be empathetically rehabilated into main stream.
Thanks...the point here is not legalising homosexuality but decriminilising it ...
I ask the Anonymous above...there is a difference beyween being homo and being a prostitute. Homosexuality is not a choice where as later is a choice. Are you hetro by choice? So there is no comparison between the two. So leagalizing the homosexuality is all about giving right to ones own sexual orientation and which is absolutely natural. What if i take away your right of sex? Dont we human do sex for pleasure? Yes, over indulgence is a sinas per hinduism but having sex for pleasure is not. And when humans do sex for pleasure it is not against social norms. But yes over indulgence is be it in hetro or homo.
Sex is normal most powerful desire of living beings so we humans have no right to stop someone from pursuing their desires (if done within limits and without any harm to anyone). So i hope my answer clearly justify your wprds "socially rightous means". It is socially incorrect or immoral to take away someone's by birth right for sex.
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