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IPC 377 and Indian Society

12 Dec

[ Mr.  Humphreys  had raised questions about Supreme Court’s verdict; residue of Colonial rule; and cultural practices in ancient India.]

 

Dear  Humphreys , I think the verdict needs to be put in its perspective.

 1. The Supreme Court of India does not pass Laws, nor does it frame rules under it. That is the function of the Parliament, the Legislative body. And, whenever a specific issue is litigated upon, the Judiciary examines the matter that comes before it, with reference to the relevant Laws in operation and in the light of the provisions of the Constitution of India.  

In the present case; the Section 377 of the Indian Penal Code (IPC) framed in the year 1860, during the British Raj, is still in operation. It is a relic of the Colonial rule.  It comes under the Federal list. This Section has neither been repealed nor amended by the Parliament. Going, strictly, by the Book, Homosexuality is still a punishable criminal offence in India.

It is quite a different matter that no one has been booked under that Section, so far; and, that in the popular perception being gay is not a crime, after all.

The Supreme Court has merely pointed out that gay relation is bad in law, as it stands at today.

After the recent verdict of the Supreme Court, the ball is now in the court of the Government of India. The Government has to take a quick action to repeal/amend/replace the Section either by getting it approved by the Parliament or by passing an Ordinance, on its own.

2. You mentioned about Indian ethos on Homosexuality. Yes; the Indian Society even in the ancient times did recognize gay relations; and, it had been tolerant about it. That Society did not consider homosexuals as perverts or sinners. They were described by the term tritiiya-prakriti or those of the third nature. And, that nature was not regarded un-natural .And, they were not blamed for not following heterosexual norms ; for they were born with that nature.

The KAMASUTRA of Vatsyayana does explain ‘tritiiya prakriti’ or third nature. The persons of third nature are of two kinds; one of the female kind and the other of the male kind (“dvividhaa tritiityaaprkritih, striiruupinii purusharuupinii ca.” 2.9.1). Vatsyayana goes on to say that among the Females, the “she”, who behaves like a woman, is to be employed for oral sex (“tasyaa vadane jaganakarma tadauparisht.akamm aachakshate” 2.9.3).As regards the ‘male kind’ of Female who has the desire for males, ‘he’ could take to the profession of massage-giver and thus coming into contact with males to satisfy them through oral sex (2.9.6-10). In this context, the act of auparisht.aka is described in detail in the Kama sutra. Else, ‘he’ could have lesbian relation with a Female of ‘she’ nature.

The Arthashastra of Kautilya did provide a place for the ‘third kind’ in its society. It even imposed a fine on those who persecuted a homoerotic person (3.18.4). Though their position was disadvantaged, and regarded ‘not ‘respectable’, they had the freedom to move about in the Society.

But, at the same time, the Hindu society recognized marriage as a credible institution to bring forth and raise a new generation of able, educated and responsible individuals who would contribute to the welfare and integrity of the  society,  carry forward its  life and its traditions. The coming generation had duties not only to the living but also towards their departed ancestors. The householders’ life had three aspects : to fulfil his duties and obligations to the family and to the society (Dharma) ; to earn wealth to take care of his family and other dependents (Artha) ; and , to procreate children to take his place in the future society . The last mentioned was Kama (desire); it had in it both Dharma (duty) and Rati (sheer pleasure of sex act).

The homosexual relation, they said, provided only Rati – the sexual pleasure. And, it did not fulfil an obligation or a duty that could be of any benefit to the society. There, certainly, was also the perception that such relation was unhealthy for the institution of family. Therefore, the gay relation, though tolerated, was not accorded a high status; and, was placed below the legalized husband- wife relation in a marriage. The gay cohabiters did not enjoy the same rights as did the married heterosexual couples.

3. Coming to the present-day India, the solutions provided by their ancients have been jumbled up. The British who ruled India for nearly a century imposed upon the Indian people the then British taboos and prejudices.  In the process, The Rulers criminalized homosexual relations through a Section of the Indian Penal Code (1860).  As successive Indian Governments have been too slow to alter the Criminal Procedure Code, the section stating punishment for homoerotic contact has not been still eliminated from Indian Law.

There are loud voices arguing that Sex preferences are highly personal matters; and it is best left to the discretion of those involved. They should have the freedom to exercise their choice/s.  There is also the question of the constitutional guarantee of life and liberty to all citizens of India. Yet; some are likely to fudge the question whether maintaining a Gay relation is a fundamental right?

This offending Section should soon be done away with; and, the traditional free outlook restored. Having said that; the mindset of the common people that is created over a century may not perhaps be so easily erased. There is a notion, largely unfounded, that gays are found a lot in fashion and film industry; and, not among the ordinary ones who slog.

The Rights of the Homosexual/Gay individuals seems to be one of the major agendas of social reforms in India today. The Supreme Court verdict has triggered uproar, putting the Government on the spot.

This tornado has caught the Indian Government at its worst time when:  it has just suffered a severe drumming in the Elections held across North India (Delhi in particular) ; its popularity is  at its Nadir; the inflation is at its Zenith (11.3 %); industrial production is down to 1.8%; the value of INR is going down the drain; and , its precious vote-banks are slipping away while  it is apprehensive of the impending Lok Sabha elections.

Yet; the Government of India has to act and provide the initiative, rather hurriedly.

Let’s await Government’s response.

In the mean time, pressure may also be brought on Supreme Court to take a re-look at its judgment-suo moto.

 

4.  The next question would be: while gay cohabitation may not be illegal, whether or not a gay marriage should be legalized; and, whether Gays should be legally allowed to adopt children. These contentious issues are bound to be debated hotly*. Many may argue that it is necessary to maintain some difference between gay partnership and heterosexual marriage, in the interest of society’s healthy growth. They might point out that children adopted by gays are very likely going to acquire a gay syndrome that would threaten the health of the family. There is  , of course , no paucity of examples from Europe and America where the institution of marriage is almost on the verge of extinction.

There would also be others who assert that there should be no discrimination; and, increasing the population was no longer a necessity or a priority in today’s India. Therefore, they would say that gay marriages are in no way detrimental to Indian society.

In any case, TV Channels and Blog Sites are sure to be set ablaze with furious debates in the coming weeks.  It will be the show-anchors’ delight.

 

 [**Please also see a Research Paper on:  The Effects of Same-Sex Marriage Lawson Public Health and Welfare by Handie Peng, Department of Economics, Emory University, Atlanta, GA. The paper is done with particular reference to USA. It hypothesizes that same-sex- marriage-ban may (i) foster intolerance for gays which may drive risky homosexual behaviours; and increased the syphilis rate (II) codify and signal traditional family values, which may raise the benefits of heterosexual marriage.]

 
5 Comments

Posted by on December 12, 2013 in General Interest

 

Tags: , ,

5 responses to “IPC 377 and Indian Society

  1. Richard Seecharan

    January 4, 2014 at 10:05 pm

    You are BRILLIANT! What a FANTASTIC page and BLOG! Are you on FACEBOOK?
    We have a GLOBAL HINDUS page with over 88,000 members, please post there, see link below. Also, can we post your essays, commentaries, analysis there?
    https://www.facebook.com/pages/Global-Organization-of-Hindus/365979650782

     
    • sreenivasaraos

      January 5, 2014 at 1:05 am

      Dear Richard, thank you for the visit and for the appreciation.

      Yes ; I am on Facebook.
      I usually post the links to my blogs on Facebook too.

      Wish you Happy Newyear

      Regards

       
  2. sreenivasaraos

    April 15, 2014 at 6:51 pm

    India’s top court on Tuesday issued a landmark verdict recognizing transgender rights as human rights, saying people can identify themselves as a third gender on official documents.

    The Supreme Court directed the federal and state governments to include transgendered people in all welfare programs for the poor, including education, health care and jobs to help them overcome social and economic challenges. Previously, transgendered Indians could only identify themselves as male or female in all official documents.

    The decision was praised as giving relief to the estimated 3 million Indians who are transgender.

    The court noted that it was the right of every human being to choose their gender while granting rights to those who identify themselves as neither male nor female.

    “All documents will now have a third category marked ‘transgender.’ This verdict has come as a great relief for all of us. Today I am proud to be an Indian,” said Laxmi Narayan Tripathi, a transgender activist who, along with a legal agency, had petitioned the court.

    The court’s decision would apply to individuals who have acquired the physical characteristics of the opposite sex or present themselves in a way that does not correspond with their sex at birth.

    “The spirit of the (Indian) Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender,” the court said in its order.

    The Supreme Court specified its ruling would only apply to transgender people but not to gays, lesbians or bisexuals. India’s LGBT communities have been protesting the court’s recent decision to reinstate a colonial-era law banning gay sex, which they say will make them vulnerable to police harassment.

    The court also ordered the government to put in place public awareness campaigns to lessen the social stigma against transgender people.

    Justice K.S. Radhakrishnan told the court that the “recognition of transgender (people) as a third gender is not a social or medical issue but a human rights issue.”

    “Transgenders are citizens of this country and are entitled to education and all other rights,” he said.

    The court ruled that transgender people would have the same right to adopt children as other Indians.

    The court said any person who underwent surgery to change his or her sex would be entitled to be legally recognized as belonging to the gender of their choice.

    The apex court also ordered state governments to construct separate public toilets for transgender people and create health departments to take care of their medical problems.

    Recently, India’s Election Commission for the first time allowed a third gender choice — “other” — on voter registration forms. The change was made in time for the national elections being held in phases through May 12.

    Some 28,000 voters registered themselves in that category.

    Many transgendered men in India earn a living by singing and dancing at weddings and births, but others must resort to begging or prostitutio

     
  3. sreenivasaraos

    March 17, 2015 at 4:34 pm

    Dear Shri Suresh Rao thanks for the visit and for the comment.

    Wow…Buddhism and sex preferences is rather a charged issue.

    In Buddhism, like in most other religions, the prescriptions governing the life, living-practices, attitudes and goals for the monks /nuns and the laity, the common people follow different standards. Their priorities and preferences are at variance.

    Now, that you wondered about those men and women clustered in the communes, Buddhist Sanghas, of the ancient India, we may try to put the issue in perspective.

    Buddhism did not start as a religion per se. To start with, it was a small group of monks who admired the Buddha’s teachings, shared common aspirations and desired to walk along the path shown by the Buddha. As the Buddha’s ideas and way of life gained greater appreciation, his message spread wide and attracted people from all walks of life. It grew into a movement. Those around the Buddha began to live in groups surrounding the Buddha. These communes came to be known as Sangha. Later, the Buddha was rather compelled (mainly by his foster-mother) to admit women into the Sangha.

    [Please see http://creative.sulekha.com/the-early-buddhist-women-stories-an-introduction_389137_blog ]

    But, as their numbers swelled in the Sangha, the Buddha had to frame rules governing the conduct of monks and nuns living in proximity within the Sangha. These rules were bunched under a text styled Vinaya –Pitaka (Pusthaka) , the Book ‘comprising the rules of conduct for monastic discipline’. The rules in the Book of Vinaya were not all framed and written in one go. But, the rules came about gradually, over a period, as when a new situation confronted the Sangha, demanding its attention and a reasonable solution. That is to say; Unlike in other religions ,where a Prophet or a leader handed-down a set of commandments, in Buddhism the code of conduct (Vinaya) was evolved over a period of time as a response to needs and challenges faced by the monks/nuns and lay of those times

    Among such uncomfortable questions that the Sangha had to handle were those relating screening the new entrants, keeping out the sick, depraved and homosexuals. Then there was also the question of consuming liquor and non-vegetarian food. But, the most uncomfortable was that relating to sexual (mis) conduct and preferences of its monks and nuns.

    Within the monastic life, the monks and nuns were forbidden to engage in sexual relations. In this context, Vinaya forbids sexual relations among four types of genders: male, female, ubhatovyanjañaka and paṇḍaka.

    Here, ubhatovyanjañaka were said to be like double-edged swords that cuts both ways. They enjoyed both heterosexual and homosexual relations. They were attracted to both the young monks and to the ‘juicy – ripe’ nuns.

    Then, Pandaka is a complex term not clearly described. It was meant to suggest variously the: transsexuals; depraved; pervert; sick having insatiable sexual urges; those suffering from physical/mental sex- abnormalities ; enjoying sex with animals and birds, etc.

    All these suggest that even the ancient Sanghas did have to grapple with the problems of sexual preferences of its inmates.

    In the modern times, since Buddhism has spread to West and to East having its followers in almost all geographical regions, cultural groups and social habits it has become rather difficult for the Buddhist Religious Leaders either to condemn or to approve same-sex relations. They have to tread a very narrow path,gingerly.

    For instance, a Leader of Tibetan Buddhism explained: “If a person was to engage in homosexuality, he/she would not be considered as following all the precepts of Buddhist principles. People don’t always follow all the principles. Very few people can claim they follow all the principles. For instance, telling a lie. In any religion, if you ask if telling a lie is a sin —they will say yes. But you find very few people who don’t at some point tell a lie. Homosexuality is one act, but you can’t say [a person who is homosexual is] not a Buddhist. Or someone who tells a lie is not a Buddhist. Or someone who kills an insect is not a Buddhist, because there’s a strong injunction against that.”

    This goes both for those in and those outside the monastery.

    Regards

     
  4. sreenivasaraos

    March 17, 2015 at 4:38 pm

    Ron Humphreys
    to

    Sveenivanasarao

    Thank you very much for the detailed response. I am familiar with Buddhism, which is related and most consider a extension of Hindu, as I have mentioned. Hindu however strikes me as a superior religion that addresses all nuance of the human experience. I always am grateful to read things from actual people I may come across on it. I have read writings on it but they are so voluminous it is hard to get a overall conceptual view on things.

    So thank you very much for presenting that. I suspected this was the way things were in the religion but did not really know. It appears the completely correct response to it, this Hindu religious response.

    It is so sad how those peoples are. I have always felt it does, as is perhaps mentioned, speak of a inordinate concern for the sexual. It is so difficult a path being gay I would think if one was not so concerned with the sexual it would be just better to abstain or leave it to another life when the choices may be easier. So I am glad to read that as it seems to reinforce my opinion on the subject. It seems a part thing, a more pleasure than construct thing to my personal opinion. Which is perhaps why a bit perhaps why, I am not gay.

    Thank you very much also it providing the present political context on the issue. That also cannot be spoken of from media derived informations; for at least in American, all media source seems tainted by agenda, the left or the right.

    In the relatively rare esoteric form of Buddhism which is my training and experience, though I am nether well trained nor experienced :0 through no fault of my teachers but mine alone….the followers of Abraham were followers not of a god, or god, as they think, but a demon.
    I can provide written reference to this from a source material of several hundred years ago if it would interest you..but probably it would not.

    In any event the more I look at those religions and their effects upon people society and laws, the more I tend to think that view is correct. Mainly they result in what we call evil to human.
    How can gays be not gay it seems not possible. It is so sad they have under colonial rule outlawed it and it continues.

    One sadness in a sea of sadness it seems. To be human is always sad it seems in this way.

    Thanks
    Ron

     

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