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Should The Court Regulate The Sexual Preferences Of Consenting Adults?

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By Soumya Raj:

It deeply angers me to see that most official forms have only two boxes for the genders (male or female). I try to think from a third angle, what if I were neither? Not only do most organisations not recognize any other gender apart from the more popular male and female ones, even consensual sex among them will now be considered a crime, post the Supreme Court ruling on section 377 today.

Section 377

Apparently, gay sex is against the cultural and religious values of India. It is not unheard of for authorities to masquerade prejudice and oppression under the guise of traditions and morals. For anyone who has thoroughly gone through historical evidences, homosexuality is not only very much culturally embedded in our society, it has also been equally repressed from all the sides. This very ostrich like reaction, where repression is thought to be the cure-all to simply erase homosexuality from the society through time, has resulted in denigrating an entire community of human beings.

Discrimination on the basis of gender, specially targeting homosexuals, is a big, white elephant staring right into the face of authorities right now, and they refuse to acknowledge it. Love is not a calculated habit, you cannot direct any living thing to “order” love. The Section 377 of Indian Penal Code criminalizes sex “against the order of nature”, under which, a sexual act between two consenting homosexual individuals can result in an imprisonment with up to a life term. This ban on gay sex has existed since the colonial era, since 1890. Today, rather than addressing this gaping loophole and putting a stamp on consensual sex among homosexuals as legal, as was the 2009 verdict statement, the SC refused to acknowledge it altogether. The court, in a very shameful manner, has managed to draw a cover to its ignominious verdict of criminalizing gay sex, by saying that only the Parliament can change laws, the Court cannot. It is, however, the Supreme Court, the highest court of the country’s responsibility to handle human rights. This brings two issues under light, that firstly, consensual love among two homosexuals is not a human right, thus degrading an entire community of homosexual people, and secondly, that the authorities refuse to accept homosexuality as a natural course of gender, being one of which does not depend on your genitals.

Ironically, one thing that comes up repeatedly is that marital rape by law is not a crime in India, but “consensual” sex among two gay people is. The “justice”, accordingly, is that you push the people in their closets further inside, and make sure they don’t come out at all. Alternatively, one can say, that the Indian authorities do not accept any other genders other than the male and female. To subjugate something as individual and subjective as gender into watertight compartments is regressive to the social health progress of an entire nation. In this manner, the authorities refuse to give a face, an identity, to people of a separate gender, where they should be accepted and respected.

The Constitution promises equality to all irrespective of their caste, creed, color, race, sex or religion but section 377 comes as a cruel irony for the LGBTQI community. With the Supreme Court backing up section 377 in all the wrong manners possible, the crimes against homosexuals will increase manifold, for as it is, it doesn’t take much for the police to misuse their powers much, and this will just pile up on to the injustices galore. Will the most powerful offices of our nation quietly back up their twisted sense of righteousness, or will the queer get the esteem they most definitely deserve? For now, the only ones who need to remain hidden behind the shelter of a “closet” are the ones seconding this verdict.

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  1. Ishan

    The law section 377 has nothing to do with homo sexuality. “carnal intercourse against the order of nature with any man, woman or animal” only deals with order of nature. Homosexuality is not against order of nature,rather it is a part of nature.Moreover writers of constitution cannot go against their article 14,15 19 and 21.

    Statements like prevention/risk of disease are obsolete.They give the statistics of people under disease. If law would have been cure,then why not prevent for heterosexual under consideration of disease prevention.

    Changing the section simply does not make sense.

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