One of the most important cases going on in the Delhi High Court at present is a PIL filed by a group of NGOs fighting for the rights of gays. Their basic plea before the Hon'ble Court is decriminalization of private consensual sex between members of the same sex; It would amount to some amendments in in the much talked about Section 377 of the Indian Penal Code 1860. The contentions advanced by the NGOs is that the sexual orientation of the persons is uncontrollable. One cannot chose or change this sexual orientation. Persons who are attracted to the same-sex have been segregated in the society and looked down upon by the majority of the population since long. Living in a country which spekas of equal protection of civil rights for all citizens of the country and endeavours made to bring the unequals to the equals, they have been given step-motherly treatment and are loathed by the society. In this modern era of globalisation and liberalisation one needs to provide a healthy atmosphere for co-existence of people and thus gays should have equal rights and not be forced to live under a social srigma inviting the wrath from the society.
The counsel for the Union Of India opposed the contentions of the Petitioners on the following grounds: (a) People inclined towards same sex union are such persons who are against the order of nature and efforts should be made to diminish these inclnations. (b) People having same-sex union are under a risk of serious health disorders as men having sex with men would have higher prevalence of HIV, Hepatitis B and C virus, cancer etc. and that the State is not equipped to tackle with these diseases (c) In the larger interest of the society for the healthy co-existence of people this practice of same-sex union should be discarded and not recognised.
The Hon'ble Bench of Judges put a few valid questions before the Union of India: One was that when the Union of India represents the people of the country as a whole and speaks of co-existence of people in the society, then is it justified in discouraging/forcing the section of the society to stop having inclination towards members of the same-sex instead of educating the other members of the society about the existence of such persons in the society? The other question was that whether the Union of India is justified in ignoring the existence of homosexuals, bisexuals in the society which has a considerable population in the country?
The other question put forward was in view of the statement given by NACO which stated that as per their studies the rate of infections among the homosexuals is not so high that cannot be confronted with given the statistical history of such cases?
The case is yet to take over more interesting turns over the next couple of weeks. I shall update on that.
Now with respect to my opinon on these aspects first i would point out about the views in a few religions with respect to the same sex union. Christians and followers of Judaism are of differing views with respect to the same-sex union. Some temr them as against the order of nature and that the Bible strongly despises against such unions. The other half supporting the homosexuals state that the Biblical passages are not applicable to the homosexual relationships as we know them today. Some Conservative Jews reject recognition of same-sex unions as marriage, but permit celebration of commitment ceremonies, in part as an expression their belief that scripture requires monogamy of all sexually active couples.
The first same-sex union in modern history with government recognition was obtained in Denmark in 1989. The recognition of same-sex union was followed by Norway by passing a legislation in the year 1993. Other countries granting legal recognition to the same-sex union are Netherlands, Belgium, South Africa, Spain, Canada. Same-sex union is recognised in a few regions of USA (California being the latest one), Argentina, Australia, Brazil, Canada, Mexico.
The countries of Aruba, Israel, France, Netherlands, Antilles, United States(NY) recognize foreign marriages of the same sex.
As per my opinion legal recognition of marriage is based upon the government's interest in encouraging stable, committed relationships. There is no difference in the ability of same-sex and opposite-sex couples to make commitments and care for each other. Some proponents of same-sex marriage stress that they seek equality as opposed to special rights. Quite rightly so, they are entitled to equal rights and equal protection before the law. The arguments that it is against the order of nature and natural law goes for a toss in the light of ancient scriptures depicting the existence of same-sex union in India since medieval times.
Now coming to the Section 377 of the Indian Penal Code which states that all persons having carnal intercourse with any man, woman, or animal against the order of nature is illegal and punishable upto life imprisonment. Some proponents for same-sex union argue that in criminalizing homosexuality in sec. 377, the classification between natural sex and unnatural sex is that those sexual activities that are performed for procreation are natural and those that are not performed for procreation are unnatural. This argument does not hold good as if this were taken to be right then there would have been no need to incorporate Section 375-376 IPC (rape).
However, Section 377 is unconstitutional in the sense that it violates Article 15 of the Constitution Of India which provides prohibition of discrimination on the basis of sex, or gender. Whereas Section 377 discriminates the homosexuals on the basis of their sexuality.
It is also violative of the right to personal life and liberty of an individual as envisaged under Article 21 of the Constitution of India as the homosexuals have the personal liberty to choose their union with the same sex. Article 377 is also discriminatory in nature violating Article 21 of the Consitution which provides equal protection of the people before the law. The fact is that there is a substantial segment of people in India who have sexual orientation towards the same sex and their rights need to be considered at par.
However, as per my opinion Section 377 does not need to be scrapped completely. It just requires an amendment with respect to allowing private consensual sex between members of the same sex. Its time that we opened our eyes to see and accept the dynamic society taking shape and make some more space in the water tight compartment of our traditional values.
