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| Gender masquerade as a dramatic device was popular in the 16th and 17th centuries, such as this scene from Twelfth Night painted by Frederick Pickersgill. |
In the previous part, we
discussed the arguments for Section 377 of the Indian Penal Code. Now, let us
hear the other side as well.
Arguments against
Section 377 of the Indian Penal Code
1. The respondents gave instances
of torture and sexual abuse:
a. Jayalakshmi v. State[1] - dealing with sexual
abuse and torture of a eunuch by police.
b. An Order of a Metropolitan
Magistrate alleging an offence u/s 377 against two women even though there is
an express requirement of penetration under the Explanation to Section 377.
2. The respondents also referred
to the incidents, which took place at Lucknow (2002 and 2006), Bangalore (2004
and 2006), Delhi (2006), Chennai (2006), Goa (2007), and Aligarh (2011) to
bring home the point that LGBT persons have been targeted by the police with
impunity and the judiciary at the grass route level has been extremely slow to
recognize harassment suffered by the victims.
3. 172nd Report of the Law
Commission was also cited which contained recommendation for deleting Section
377 IPC and argued that Section 377 has been rightly declared unconstitutional
because it infringes right to privacy and right to dignity.
4. It was also said that criminalisation
impairs health services for gay men and thus violates their right to health
under Article 21. Criminalisation creates a culture of silence and intolerance
in society and perpetuates stigma and discrimination against homosexuals.
5. Another point raised was that
the Section 377 is vague and seeks to introduce a classification which is not
based on rational criteria and the object it seeks to advance is not a
legitimate state object.
6. The HIV prevalence in MSM is
7.3% which is disproportionately higher than in that of the general population
which is less than 0.5%. The prevalence continues to rise in many States and
this is because of the stigmatisation of the MSM population due to which they
are not provided with sexual health services including prevention services such
as condoms.
7. The respondents also said
that, from excluding oral sex to now including oral sex, anal sex and
penetration into artificial orifices such as folded palms or between thighs by
terming them as imitative actors or acts of sexual perversity, the scope has
been so broadened that there is no reasonable idea of what acts are prohibited.
8. Section 377 distinguishes
between carnal intercourse which is against the order of nature and not against
the order of nature. This classification is unintelligible. It is arbitrary and
not scientific.
9. This becomes clear when
Article 15(2) is applied to transgendered persons who identify as a third
gender. For example, Government of India has introduced an option for “others”
in the sex column of the passport application form. This can be achieved only
if the expression “sex” is read to be broader than the binary norm of
biological sex as man or woman.
To be continued…..
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