Article 377 of IPC and Same Sex Relationship
The Indian penal Code was the work of Lord Macaulay, who has the distinction of being the first man in India to have formulated a common criminal code for the entire country. The Indian Penal Code ( IPC) came into effect in 1860 and superseded the Sharia and Hindu law in vogue at that time. In many ways the IPC was a progressive code and laid down the principle of Natural Justice as enshrined in English Jurisprudence. The laws were framed keeping the social mores in vogue at that time.
One of the laws that was enacted in the code was section 377. This section dealt with unnatural offences of a sexual nature and same sex relationships like homosexuality and lesbanism. These were covered by this section. The punishment prescribed in the IPC for such offences was rigorous imprisonment up to 7 years. In those days such a law existed even in England and the famous writer Oscar Wilde was jailed for the offence of sodemy. At that time knowledge of the human mind was limited and it was assumed that same sex relationships were against the "order of God and nature " and needed to be punished.
With the passage of time it dawned on doctors and psychoanalysists that homosexuality and lesbanism were also part of human nature and could be termed deviant, but not criminal. The sections on homosexuality and same sex relationships were dropped from English law and acts decriminalized. Many other countries like France and the USA followed suite.
In India also there was an awakening and many intellectuals and men of letters asked that section 377 and allied sub sections be deleted and the crime of homosexuality be decriminalized. However a bench of the Supreme Court upheld the validity of this anti gay law . in a judgement the Court also brought out that during the last 150 years of this section being in force in india, not a single person had been convicted for this offence. Taking the path of least resistance the Supreme Court upheld the validity of section 377 of the IPC.
Where do we go from here? It is a fact that this section has only been used in the rarest of rare cases and no one ever has been convicted of a offence under this section in India. Yet it hangs like a Damocles sword over a average citizen. The most important thing is the act does not recognize that a man or a woman can have a penchant to live life with a same sex person. In other words it still feels that same sex relations are criminal in nature. This must change and it's about time that a full bench of the Supreme Court debated this issue and examines the testimony of doctors and psychologists and gives a reasoned judgement. India cannot lag behind the world and remain in the bigoted company of the Muslim nations who dish out severe punishments for such acts. One can't forget that Anwar Ibrahim a cabinet minster in Malaysia is undergoing a 5 year jail term for this crime. Do we want to be in such company?
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