Do people choose to be gay ? Are they making an immoral
choice which the government should discourage ? Or People
are born gay and being a homosexual or a heterosexual is not in
our hands and our constitution should legalize gay and lesbian
marriages and protect the homosexuals from discrimination ?
Earlier there was a bias against the left handed people and they
were discouraged to write from their left hand and were forced
to write from their right . Due to this , their writing was spoiled
and could never write beautifully with ease as they did with
their left hand .
Similarly , as being a lefty or a righty is not in our hands , being
a homosexual or a heterosexual is also not as sexual
preference is biologically determined and is not a choice .
The Law ,
Section 377 reads:
“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.”
Being a progressive society and a fast developing economy
which has managed to redefine itself , why do we continue to
be regressive people as criminalization of gay sex or any kind of
sex , cannot be a part of a progressive society . Even if our
constitution give the homosexual their rights , do you really
think that the society like ours will accept them with open arms
. What needs to be changed before the law is the mindset of
the Indian society .
It would be extremely important to note that the section 377 of
the Indian Penal Code was made in 1861 by Lord Mcaullay
which is an archaic law whose basis lies on Victorian morality .
So the question is that why are we still keeping up with the
laws made in 1861 with the current modern times .
In a country like UAE , Homosexuality is not just a taboo subject
but its strictly forbidden and punishable by law . It has harsh
discriminatory laws condemning homosexuality and promotes
homophobia in the name of religion and is not at all ashamed
of it . I believe that India is reclining towards such tendencies as
we are still keeping in pace with section 377 .
Where there are countries like UAE and India where any kind of
homosexual activities are illegal , there are also countries like
New York , Netherlands , Canada , Belgium , Spain , South
Africa etc. where not only homosexual activities are legal but
they have also legalized same sex marriages .
Now my question is that how can establishing a physical
relationship between two consulting adults with one another
on account of being of the same sex be deemed as “ against
the order of nature” , which on that matter is a violation of a
very basic fundamental right . The Lesbian , Gay , Bisexual and
Transgender community has been relentlessly raising their
voice on this matter . The movement was led by the Naz
Foundation (India) trust which filed a case in Delhi High Court
seeking legalization of homosexual activities between two
consulting adults .
The judgment was delivered on 2 nd July 2009 . The rights which
were violated by section 377 was the right to dignity and
privacy within the right to life and liberty under article 21(
Under fundamental right to freedom ) of the Indian
constitution . Section 377 also offends the guarantee to
equality granted by article 14 ( Under fundamental right to
equality ) as it creates an unreasonable classification and it
targets the homosexuals as a cast . So the court did not strike
down section 377 completely but declared it unconstitutional
so far . But on December 11 2013 , the supreme court turned
the decision of Delhi high court stating that the order of 2009
was “ constitutionally unsustainable as only parliament can
change the law , not courts .”
I believe that, in a way section 377 has been a turning point in
the history of this country , firstly because it has bought unity in
a certain sections of the society which were earlier segregated
and secondly because it has allowed the people of the country
to question the law and demand their very basic fundamental
right .
Today as the nation awaits for the review of section 377 , we
hope that the judicial system will not disappoint us and our
faith in the judiciary will be restored.
