Article 377 of Indian Penal Code

At the outset it may be prudent to state that any form of sexual activity, between consenting adults, performed in privacy is a matter of personal preference of the concerned adults. It is their prerogative to understand and withstand any social or other repercussions arising out of such acts. The state or law should not come in between or interfere in such personal matters of its citizens. Therefore treating sexual relations between consenting adults of same gender as a criminal act is wrong in principle. However if such an act is forced upon an adult or involves children then the same has to be viewed as a criminal offence and dealt with under suitable laws. Therefore Article 377 needs to be suitably modified to allow freedom of choice in matters of sex to all adults in the society.

It is also equally important to establish that homosexuality or lesbianism cannot be deemed to be the natural forms of sex. The natural act of sex calls for a male and female partnership and that has to seen as an axiomatic truth. Homosexuality and lesbianism can possibly be viewed as exceptions to the law of nature where two people of same gender wish to engage in acts of sex for individual sexual gratification. It may be argued that homosexuality or lesbianism may come naturally to some. Notwithstanding this, the fact remains that such a sexual preference, of the miniscule few, would still be an exception to the normal law of nature as applicable to humanity as a whole across the universe.

The concept of normal law of nature in this regard has been questioned often. Most gay activists ask who decides on the law of nature. How do we know what is the law of nature as far as sex is concerned. Law of nature as applied to humans and animals is defined in Merriam – Webster dictionary as a natural instinct or a natural relation of human beings or other animals due to native character or condition”. This definition should clarify all doubts of all doubting Thomases in this regard. The male-female sexual relationship is a result of a natural instinct between the two genders because of their specific individual characteristics and conditions. It has been so since humanity originated in this universe and there is no reason to think that it may change in future. Aberrations or exceptions to this law of nature were there in the past and will possibly be there in future too but they can never be the law itself. Laws of nature can neither be written nor modified by human beings. It may be pertinent to recall what Joseph McCabe, famous English writer and speaker on Free Thought, said long ago on the subject of Law of Nature. He said A law of nature is not a formula drawn up by a legislator, but a mere summary of the observed facts — a ‘bundle of facts.’ Things do not act in a particular way because there is a law, but we state the ‘law’ because they act in that way”.

It is often seen that young people, both male and female, at the onset of puberty invariably have little knowledge about sex and what it involves. In their journey to experiment and explore their sexuality, at times some may get attracted to a partner of the same sex. But invariably such misplaced attraction is short lived for most. In most cases, sooner than later, pleasure and wisdom of having sex with opposite sex is understood and the law of nature over rides everything else. However a few stray cases may evolve where same sex attraction may increase and reach a point of no return as they advance into their adulthood. This could be due to various reasons and does not follow any set pattern or path. The society as a whole needs to accept such aberrations without the need to chastise or treat such people as outcasts, queers or criminals.

Section-377-of-IPC

In all this debate there is one important issue that invariably gets forgotten. While it may be sensible and civil for the society to accept homosexuality or lesbianism among consenting adults, what is not acceptable is the need for flaunting or promoting such misplaced preferences. This does not imply that homosexuals must remain closeted as has been the norm in the past. The point that needs to be understood is that one cannot wear such sexuality on his sleeve and confront the society with an ‘in your face’ attitude. If the society is expected to show the maturity to accept such preferences of a few, then in return these few have to respect the rules and sentiments of the society too. It is important to understand that growing children in their teens, who are at an impressionable age, can be misled if such preferences are flaunted without any reservation or disdain. Unfortunately in their fight to be accepted, the LGBT community has not shown enough concerns in this regard. The logic of ‘more the merrier’ can be counterproductive in their need to have their voice heard. The need for their fight to be treated fairly and equally is important but a deliberate attempt to proliferate such sexual preferences is not.

The demand of LGBT community for conjugal or marriage rights is a subject that has received a lot of attention. Marriage is not about sex alone. The very concept of marriage is about coming together of two human beings of the opposite sex since marriage implies reproduction and raising a family. The act of sex, in its true form, is linked with procreation and that is a universal truth since this law of nature is true for all animals including human beings. The creator of humanity was indeed a very wise individual since he made sure that this act did not result in procreation every time it was performed. That is why he gave the female her menstruation cycle to control reproduction and the clitoris for enjoyment during the act of sex. It is also pertinent to understand that bringing up a family needs a combination of warmth, love, care, patience and compassion provided by female with the firmness and security provided by a male partner. It would be rather foolish to assume that such an environment could be created by two people of same sex living together. The claims that partners of the same sex can easily adopt a child are correct in law but certainly cannot be seen as an equivalent of a mother giving birth to a child. The fact that any such adopted child would have been born to a male-female combination in itself should bust the myth that two people of the same gender can be husband and wife.

Gay activists often tend to dismiss the male-female theory as something man made and not relevant in today’s times for a marriage. Unfortunately marriage in its real sense is not a matter of any two people living together. That could more suitably be defined as a ‘live in’ arrangement which could be arrived at for different reasons. If two gay people wish to live together, they are welcome but giving their ‘live in’ arrangement the status of a marriage is something that defies logic. It may be pointed out that some Western societies have accorded marital status to such couples. In this case all one can say is that such status being accorded is manmade, if it is in place today, it could as easily be disallowed at another time. However no law of nature can be undone by any man or any authority. The story of Article 377 is similar to this since it was manmade and in all likelihood will be consigned to history in India also. But there is no guarantee that it may not come back in the future in some form or the other depending on the prevalent environment within the society at that point of time. On the other hand can one ever imagine that a man-woman relationship may be allowed or disallowed by a manmade law? That in nutshell is the power of the ‘law of nature’ – it is permanent in nature and cannot be modified, changed or dismissed by any man.

Frankly it will be silly to bring religion into this debate since in today’s society it has no role to play in this regard. Similarly it will be incorrect to link morality with individual sexual preference of an individual. There is absolutely no link between the two. Such links, if any, are only established by vested interests in their bid to label acts of sex between two people of same sex as criminal acts. It may be good for such people to understand what Mark Twain said on morality “Morals are an acquirement, like music, like a foreign language, like piety, poker, paralysis; no man is born with them”. It will be foolish to assume that a homosexual or a lesbian cannot have high morals since there are any number of examples of such people who are not only held in high esteem but are also high achievers in the society.

There is no doubt that with changing times some aspects of life too need to be viewed in a different manner. Attitudes and perceptions have to keep up with time so as to remain meaningful and also maintain harmony in the society. In fact what is important is that powers to be, responsible for taking decision in this regard, should not procrastinate on the issue but instead take matured decisions on priority in the overall interest of the society and allow freedom of choice in matters of sex to an individual. The earlier this matter concerning Article 377 is closed the better it will be for all concerned.

Saroj Chadha, an engineering professional, is a successful entrepreneur. Having retired from the Indian Army after having served for over 23 years, he has also been a consultant for leading Indian and Multinational electrical companies. He lives in New Delhi.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.