SEXUAL ORIENTATION IS NOT A MATTER OF
CHOICE, IT IS PRIMARILY NEUROBIOLOGICAL AT BIRTH…
Section 377, Indian Penal Code, 1860 states that:
“377. Unnatural offences.
has carnal intercourse against the order of nature with any man, woman or
animal, shall be punished with imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine.
Explanation. —Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.”
The law made consent and age of the
person irrelevant by imposing a blanket prohibition on all penile-non-vaginal
sexual acts under the vague rubric of ‘unnatural offences’.
Though ostensibly applicable to
heterosexuals and homosexuals, Section 377 acted as a complete prohibition on
the penetrative sexual acts engaged in by homosexual men, thereby criminalising
their sexual expression and identity. Besides, the society too identified the
proscribed acts with the homosexual men, and the criminalisation had a severe
impact on their dignity and self-worth. Section 377 was used as a tool by the
police to harass, extort and blackmail homosexual men and prevented them from
seeking legal protection from violence; for fear that they would themselves be
penalized for sodomy.
It has been repeatedly
argued that Section 377 has no place in the statutes of a modern, liberal society.
The state has no business dictating the sexual orientation of consenting
adults. The Delhi high court has in the past shown that the courts can read
down the section to decriminalise gay sex. But the ideal solution is not a mere
reading down of the section. The legislature should recognise that the law
needs to go and should repeal it. The government should initiate such a step by
moving a bill to remove gay sex from the purview of Section 377. That a
person’s sexual orientation is not a matter of choice, it is primarily
neurobiological at birth must be understood by one and all in a nation that is
supposedly a ‘free country’ with a progressive mindset. The problem lies not in
a person’s sexual choice but in the minds of the people surrounding them.