It's foolish to think that Section 377 will only be used against homosexuals. This law affects EVERYONE. The chargesheet against Asaram for example includes

It's foolish to think that Section 377 will only be used against homosexuals. This law affects EVERYONE. The chargesheet against Asaram for example includes "oral sex" which is now illegal in India thanks to the recent illogical Supreme Court verdict

Section 377 Affects You Too – Asaram Charged with “Oral Sex”

There’s a glaring hole in the arguments around Section 377. Everyone is so focused on whether homosexuality is “unnatural” and is “destroying Indian culture” that they’re missing the wood for the trees. Section 377 affects us all – both gay people and straight people. It makes illegal any so called “unnatural sexual” act which the strict reasoning of the idiotic Supreme Court verdict narrowly defines as anything except “penile vaginal intercourse”. Meaning that any other sexual act is illegal. Like oral sex between consenting adults.

Now people have defended this law saying “Oh, it’s never used to refer to oral sex”. Or “Oh, it’s only to prevent pedophilia”. Bullshit. Today, the police have charged Asaram with violating 377 by having oral sex. Mind you, this has nothing to do with the charge of rape which is a separate offence altogether. This delightful little bit is added on as an afterthought. Just because they could. A direct consequence of the shameful SC ruling striking down the progressive Delhi HC verdict scrapping section 377.

Are you afraid yet?

How come people are so damn comfortable having laws on the books with the assurance that “they’re only used in certain situations”? Isn’t a key principle of modern jurisprudence the fact that the law is applied to everyone? Isn’t that the purpose of having an explicit written code in the first place? Looks like the basic idea of having a written law code pioneered by Hammurabi 4000 years ago is yet to sink into the Indian consciousness. It’s a grotesque argument to suggest that an unfair law is ok because hey! It’s only selectively targeted!

Human beings are sexual creatures. We don’t just lift up our underpants, screw and walk away.

But that too is an obvious lie. If it was so, Asaram would never have been charged with oral sex. Make no mistake, almost all of us have broken this law at some time or the other. Human beings are sexual creatures. We don’t just lift up our underpants, screw and walk away. There’s a hell of a lot of foreplay (sometimes exclusively!) involved which the prudish Victorian morality is unable to digest. Like it’s any of their fucking business in the first place.

So can we please stop supporting this obviously unjust law merely in the context of homosexuality? While that by itself is enough reason to scrap it, its ramifications go way beyond that. For those who’re blind to the sufferings and persecutions of gay people, at least raise your voice to scrap this law for your own sake! Religious or not, gay or not, man or woman, this abomination of a statute should have been expunged a long time ago. And if we could have laid our hands on the guy who first put it in there, we would have taught him a lesson either for sheer incompetence, stupidity, or malice. Since that option is taken away from us, let us at least get rid of it with no further ado.

This is about you. So can we please stop talking about the “homosexual” angle now?

Comments

  1. shilpi says:

    strong points made! Totally agree with you!

  2. simplegirl says:

    Bang on.. So it means a heterosexual married couple indulges in oral or anal sex , they can very well be arrested and put behind the bars, being termed as criminals..

    I wonder what people who spoke of turning homosexuals to normal will say now..

    I think they will stop having sex altogether.. lol..

  3. Murali says:

    On a lighter note, what is unnatural cannot be termed as ‘sex’. If ‘sex’, is only defined as doing X, then doing anything apart from X is not ‘sex’. Hence we all are saved.

    • Good point. Two pence for your thoughts. While I agree with the irrationality of section 377, from a pragmatic point of view – I don’t think applying this section of IPC against Asaram is something novel or something the police did ‘to show they could’.
       
      According the the criminal procedure, the law enforcement machinery has to apply all relevant sections of the relevant laws when a person is charged for a crime. Hence, depending on the act AND the context, a charge of murder can also be accompanied by charges of abduction, wrongful confinement, assault, possession of illegal firearms, grievious hurt, etc. etc. Prevents the accused getting away by exploiting loopholes in the prosecution of the gravest of offences.

      • bhagwad says:

        I would have no problems with this – except that while defending Section 377 to the courts, those opposing decriminalization of homosexuality specifically mentioned that the section is rarely applied. Whereas the truth is that the claim of “unnatural” sex is tagged on whenever they get the chance.

      • A bad law, even if ‘rarely applied’ is still a bad law. That’s where the contention against section 377 lies. Unfortunately, the majority of brouhaha against s377 isn’t calling for a push for parliamentarians to amend the IPC to bring it into line with grundnorms of today’s social consciousness; but an obsessive compulsive demonisation of the Supreme Court for refusing to strike down what is essentially a legislative code.
         
        Given that the Indian Supreme Court does not enjoy supreme powers of judicial review (a major distinction from the US legal system and more in line with the British system), it cannot be expected for the SC to strike down s377 as unconstitutional. The section doesn’t actually criminalise homosexuality (a person’s state of being) but certain acts that are deemed reprehensible from a prudish Hindu middle class moral perspective. Thats on the same league as the prevalence of Romeo-and-Juliet statuatory laws in the United States and other common law countries (apparently, it is grossly ‘unnatural’ and unfathomable for psychologically healthy teenagers to be sexual). Thats where the debate should lie – for the parliament to do something about it.

      • bhagwad says:

        The Supreme Court has the power (and duty!) to strike down unconstitutional laws. By any measure Section 377 is unconstitutional.

      • Section 377 is a regressive and amoral law by any measure, but not one that violates a person’s basic constitutional rights. I have watched the recordings of the proceedings, read each of the provisions where the constitutionality of the law was challenged AND analysed it from a professional legal viewpoint. Most of the arguments challenging the constitutionality of the section were utterly flawed from a legal perspective and took pleas on purely moral grounds (which I agree with, but it isn’t the job of courts to fix bad laws which aren’t *proved* to be unconstitutional).
         
        Ideally, the law is supposed to keep its nose out of people’s sexual lives as long as its consensual. However, the constitutions of most common law countries, including India, DOES empower the state and the law enforcement machinery to prosecute people for what are purely moral ‘offences’ like sodomy, bestiality, statutory ‘rape’, etc.

      • bhagwad says:

        The right to life has to be interpreted expansively to include the right to live with dignity and that includes sexual freedom. The right to privacy is an implied fundamental right as stated by the SC many times (if you want, I’ll give you references). Telling consensual adults what to do in their bedroom is a terrible violation of the right to privacy.

        I read the SC judgment. It’s full of holes. It says legally unsustainable things like “homosexuals are in a minority”. Compared to the Delhi HC judgment (which I have also read), it’s a total piece of crap.

        The SC judgment is vastly inferior to the Delhi HC one.

      • You overlook the basic principle of the constitutional ‘right to life and personal liberty’ – that such a right CAN be restricted “according to procedure established by law”. This is a clearly specified clause that RESTRICTS an INDIAN court’s ability to overrule a statute in India that *explicitly* empowers the state to infringe an individual’s rights, if such an infringement is within the ambit of a competent law. In simple terms, the constitutionality of state action can be challenged ONLY when it comes to arbitrary executive action which is beyond the powers granted to it by the law.
         
        Unfortunately in this case, IPC section 377 IS THE LAW, the Supreme Court does not have the authority to strike it down. This was clearly stated by Justice Singhvi when he explicitly agreed that the law needs to be updated to reflect the current scenario BUT ALSO stated that it must be done by the legislators. This is a point that the average legally untrained media personnel and random bloggers clearly choose to overlook.
         
        Legally speaking, section 377 is not even the ONLY provision that infringes on an individual’s liberty, privacy and dignity – I could cite at least 83 provisions of the IPC (including the newly amended laws on sexual harassment) that can be interpretative to violate an individual’s right to privacy, dignity and sexual freedom.
         
        We need better laws in this country and no, these laws don’t have to be abridged from the US laws. The US is a poor model for legal inspiration when the complexities of the Indian social system is concerned.

      • bhagwad says:

        You’re overlooking the fact that the Supreme Court has on several occasions torn down valid laws that violate the Constitution. There is ample judicial precedent of the courts stepping in to strike off laws (not executive action) that violate an individual’s fundamental rights.

        A literal acceptance of your position is that the citizens of India are at the mercy of governments who can tomorrow bring in a law to randomly kill people without the Supreme Court having the right to strike it down because it’s “a process established by law”. In fact, this was the very same argument used during the emergency. Things have changed since then.

        You say that all laws are valid and only arbitrary executive action can be punished. This is in contradiction to the facts.

        In fact if you read the SC’s judgment, they clearly give their opinion that Section 377 does not violate Articles 14, 15, 19, and 21. If what you were saying was a consideration, they would have said “Yes, this law violates fundamental rights, but since it’s a valid law, we can’t do anything”.

        The implication is that if they had found the Section to be violative they would have struck it down. Just like they’ve done dozens of times in India’s history. In fact, they’ve even struck down constitutional amendments that violate the “basic structure”. Forget about mere laws. Refer to the Kesavananda Bharti case for more details.

        I’m sorry but it appears to me that you overestimate the power of the legislature in India. They are bound by chains and cannot move an inch outside the basic structure of the Constitution that is set in stone for all time as long as the current version of India exists.

        I don’t understand why you think that this is some special case when the judicial precedent is so vast and well established.

      • The entire contention around Keshavnanda case was IF the parliament of India had unbridled powers to amend the constitution AND how far the Supreme Court can go to strike down a law enacted by the parliament. When you read the ratio of this case and countless others (Minerva, Golakhnath, Dastane, etc.) AND analyse it from a legal perspective, you’ll understand that the SC power to strike down a legislative enactment goes only as to protect the basic principles of the constitution from being defeated.
         
        And by the way, the government of India DOES have a law that has been upheld by the Supreme Court; which gives the state extra-judicial powers to arbitrarily arrest, detain, torture, rape and even murder bona fide citizens in the name of national security. Read more about the Armed Forces Special Powers Act and how it works in NE India.
         
        If the Supreme Court could uphold a law that gives YOUR national army powers violate the basic human rights of MY people, without any judicial recourse, do you think it is a ‘special case’ of bigotry when a bench decides that some dude doesn’t have a ‘right’ to put his dick in another dude’s ass?

      • bhagwad says:

        None of your points are a refutation of what I’m saying.

        But at least you’re beginning to admit that the SC can strike down laws that go against the basic principles of the Constitution. This is a departure from your earlier comment “the constitutionality of state action can be challenged ONLY when it comes to arbitrary executive action which is beyond the powers granted to it by the law.” As we’ve seen, the powers granted to it by law can be struck down as well.

        So now we’re getting somewhere. It only remains to be seen whether or not Section 377 violates the basic principles of the Constitution. And as I (and others, including the Delhi HC) have argued, this is very much the case. Many people have pointed out glaring legal loopholes in the SC judgment that are absurd right on the face of it. It’s hard to argue that a life of dignity and freedom to live one’s sexual life privately are not fundamental to the Constitution. I’ve already mentioned the specific Articles that contradict it.

        The real travesty is that this case hasn’t yet been heard by a five (or thirteen) judge Constitutional bench. They are the ones who will have the real final say as of now.

        Finally, your reference to AFSPA only adds fodder to the demand that even AFSPA should be struck down. It’s not argument for upholding Section 377, but for getting rid of even more laws. It’s not an argument to point out other wrongdoings when debating whether or not one particular instance should be remedied.

        Finally, what is this “MY” and “YOUR” people? Is it some kind of code? Who are “your” people, and who are “my” people? It would be helpful if you were to include some kind of background before making such undefined pronouncements.

      • “The SC judgment is vastly inferior to the Delhi HC one.”
        I disagree. I don’t base my opinion of the quality of a court’s judgement on whether it conforms to my personal perceptions or not. As a legal professional, I understand that courts are institutions whose job is to uphold law, not ratify public opinion.

      • bhagwad says:

        I’m not sure who you’re addressing here and how this is a valid argument. It would have been a valid argument if at some point I had claimed that I supported the Delhi HC’s judgment because it conformed to my personal perceptions.

        But since I never said such a thing, I’m forced to conclude that you’re addressing some other point made by someone else in some other place. Perhaps you might want to place your comment in the relevant section next time so everyone knows who you’re responding to?

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