Decriminalization of Section 377: a historic judgement day

SOUGATO BASU | September 1st, 2019 . 12:37 pm






On September 6, 2018, Supreme Court gave a landmark verdict when it revoked the law which criminalized “consensual gay sex” on the grounds that it is arbitrary, unconstitutional as well as irrational. It marked a historic day for the transgender community as they received a new identity and acceptance from a society which debarred them from enjoying equal rights and privilege that others are entitled to. The newspapers on the day following this historic mandate were rife with headlines of a second Independence Day that our country had got after 1947. It is true that history was recreated on that day as the Supreme Court took into account the plight of the transgender community and overturned a colonial rule that prevented the transgender people from having same-sex partners since it was against the “law of nature”. Any act that does not align with the accepted norms of society, as the same-sex relationships were considered a punitive act, violates the norms of the rigid society. Supreme Court did take a bold step in erasing this law from our country and provided the transgender community a new and renewed life. Though many people condemned this landmark judgment and expressed strong disapprobation, yet it did not fail to win the hearts of the Indians as well as those who have waited for this day for years and waged a long struggle in order to pass this landmark judgment.

Dissidents who were vehemently against the Supreme Court’s judgement and same-sex relationships, very strongly put forth their views that it is against the “order of nature”, something that is not natural. It is indeed peculiar what is natural has not yet been defined by any one till now. Also it is ironical that “nature” itself implies anything which is free from human intervention and is in existence since time immemorial that hinges on a divine source. But humans have now appropriated the meaning of the term “nature” and have transformed its meaning altogether and anything that is contrary to their opinion and views is termed as “unnatural”. Nature, as we define it in its pristine form, has lost all its essence and nowadays, what we call “natural” is something that is congenial to humans and what they think is justified in their own perspectives. It would not be wrong to say that nature’s genuine essence has now been appropriated and radically transformed by the humans who have forcefully stripped it off its true spirit and entered its meaning into the law books of our country. Hence anything “unnatural” can out rightly be considered as a violation of the “human-made” nature whose law and decree has been forcefully imposed on all individuals.

It is also peculiar that the “nature” which is present in its pristine form has given birth to a third gender that is also part of the same catalogue of sexes that inherit the earth. It is often ironical that nature that itself gives birth to the third gender constricts them from exercising their own rights and privileges, hence being partial only to the other two sexes that takes benefits and enjoy rights provided by “nature” itself. If the origin of the three sexes are the same, the question arises that why such disparity must exist between the three sexes? Surely, such iniquity has not been foisted upon the third gender by nature since it is inactive and inanimate. A human intervention is surely playing a role in doling out the benefits only to the first two sexes and depriving the third gender of the dividends that may have erased the widening gap between the three sexes.

One can also argue that it is no fault of a transgender person who has been created such and have taken birth on this earth. Blaming a person for possessing qualities and traits as contrary to a “normal” person is completely ridiculous and arbitrary. He cannot be blamed and held responsible for being born in such a manner that invites abomination and aversion on the part of the general public. Since they have not experienced such life and witnessed “queer” traits in any individual they are familiar with, they conceive that gait of the person as preternatural and perverse. Such conception is easily attributed to their insensibility to the natural order of life in which every individual is considered equal before nature, irrespective of the sexes and community in which they are born. It is not uncommon, hence, to find people disapproving of the judgment, since they follow the law that strictly lays down the principle that consensual sexual act between same-sex people is prohibited and termed as “perverse”. Their oblivious behavior towards what constitutes nature is brought to the fore as they resort to legal ways of defining this problematic term. The entire homosexual community rejoiced at the historic judgement that brought them upon the same level with the other two sexes in terms of equality and freedom of expression. A norm that remained struck in the body of the Indian law as a thorn which aggravated the plight and misery of the homosexual community was plucked out of the constitutional body after thorough debates and years of struggle. It is nevertheless, a bone of contention between its advocates and dissidents who staunchly believe that such sexual act will not be good for the society and will be a deviation from the order of nature.

The Supreme Court ruled that right to privacy is an essential fundamental right of the Constitution protected under Article 21 of the Indian Constitution and firmly stated that “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual”. It not only harms the self-pride of that individual but also deters him from exercising the basic rights that are available to the other two sexes and confines him to a social space that has restrictions and limitations imposed upon it. Depriving a person of the right to privacy is equal to discriminating against him on the grounds of liberty and freedom.

It is bizarre that all those who are terming this historical jugdgement as “unnatural” and “execrable for a society” remain ignorant of the fact that it is in the Indian epic, Mahabharata, where an eunuch or a transgender called Shikhandi played a pivotal role in turning the tables on the Kauravas and acted as a catalyst in winning the war for the Pandavas. It is said that anything which is not there in the Mahabharata cannot be found anywhere else. Keeping this adage in mind, we can say that the transgender community has been mentioned in the revered text of the Mahabharata and has been incorporated into the narrative that boasts of innumerable stories and tales. The author, sage Vyasa, could easily have excluded this one character but such were the circumstances which led into the making of Shikhandi that the culmination in the war could not have been reached without this character. He played an integral role throughout the war and hence Vyasa left no stone unturned in portraying the character of the eunuch which in today’s society is detested by others. If such an epic could include the character of a transgender within the social space of the Vedic times, why cannot we include them within the societal framework in an equal basis? Taking into account the arguments as put forth by opposition parties of the Court’s judgment, it can be concluded that Vyasa was far ahead of his times and was a visionary in terms of Shikandi’s inclusion in his text and allowing him to share the same space and position as other characters of the text. Hence, it cannot be denied that though we have moved ahead in time, we are still a regressive and an inflexible society that fails to provide equal status to each and every individual’s right to freedom and liberty. Therefore, I would like to conclude by saying that this earth has diversity and multitude of individuals inhabiting this beautiful place and the moral conscience demands parity and liberty to all its inhabitants regardless of the community to which they belong and requires equal treatment to every individual since they have the same origin that nurtures them so that they can be entitled to rights and privileges that had been hitherto, available to a handful sections of people. It is nature in its pristine and uncorrupted form that provides equality and a right to live with dignity to every individual, thereby, creating harmony and a sense of brotherhood in the society.

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