Article 377-Don’t Scrap It;There’s still a battle to Fight



Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ―”I am what I am, so take me as I am” and similarly, Arthur Schopenhauer had pronounced, ―”No one can escape from their individuality”. In this regard, it is profitable to quote a few lines from John Stuart Mill:-

―”But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”

This is how Supreme Court introduced their judgement on 6th September 2018, a historical judgement in which they decriminalized sex between people of the same gender. This was apparently a crime in India according to the Article 377 of the Indian Penalty Code(IPC).

The IPC and Article 377

The Indian Penal Code, or the IPC is an age old law which was formed in the year 1860. It is a very vast subject in itself and has 511 sections in it, one of which is Article 377.

The Article 377 has been a matter of debate since long for the LGBT activists who have described this law in every negative dialect possible. They have always demanded for the scrapping of this section. Their basic argument is that this ‘draconian’ law criminalized sex between the people of the same gender, calling it unnatural. It was a law made by the Britishers in colonial times, and even Britain does not have such laws today.

Article 377 Should not be Scrapped

While the above arguments against Article 377 seem nice and well-versed, these arguments talk about only one thing in it, which is intercourse between same sex people. Though even this article clearly doesn’t say anything against intercourse between the same sex people. The words used in the article, such as ‘against the order of nature’ and its modelling behind The Buggery Act, 1553, made it implied that this law prohibited sex between same sex couples to the extent that even if they’re caught doing a sexual act in private, they’re to be punished. It was also interpreted by the court like that.

Article 377

But that was not all. The act also prohibited paedophilia-sex with children and bestiality-sex with animals. While the definition of ‘unnatural’ in terms of intercourse between same sex and a straight couple is definitely debatable, when it comes to intercourse with children and animals, one cannot possibly think of both these acts as ‘natural’ and ‘non-offensive’. Article 377 calls them unnatural. So, while the law has parts which must be amended, it certainly must not be scrapped.

The Future Generations Must Not Normalize with the Abnormal

What I mean to establish through this point is that the points mentioned in Article 377 which ban paedophilia and bestiality mustn’t be normalized or thought of as something natural. It is not. In developed countries, especially the European giants and the USA, LGBTQ movements and support groups have slowly started normalizing their stance on these things, and have openly come out in support of it. The below poster is a good example of what I’m talking about. It also shows why Article 377 is important and why it must stay.

The Fight Isn’t Over Yet

When I say this, I mean it. One must think that at least in terms of legality of this issue, the fight might be considered over. But it is not. Article 377 never talked about marriage. It only talked about sexual intercourse, and the Supreme Court ruling legalized that. Nothing was mentioned about the marriage rights for the LGBTQ community. While we must celebrate what has been done, we mustn’t forget that there should now be laws which talk about gay marriages and legalize them. LGBTQ movements must now concentrate on demanding amendments to the Special Marriages Act for their favour, or to constitute a whole new act altogether which deals with the subject of their marriages.

For now though, let us celebrate this win. Love is in the air. Let’s not spoil it by talking about legal laws.

Jai Hind

भारत माता की जय!

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