SEXUAL ORIENTATION IS NOT A MATTER OFCHOICE, IT IS PRIMARILY NEUROBIOLOGICAL AT BIRTH…Section 377, Indian Penal Code, 1860 states that:”377. Unnatural offences.—Whoever voluntarilyhas carnal intercourse against the order of nature with any man, woman oranimal, shall be punished with imprisonment for life, or with imprisonment ofeither description for a term which may extend to ten years, and shall also beliable to fine.Explanation. —Penetration is sufficient to constitute the carnalintercourse necessary to the offence described in this section.”The law made consent and age of theperson irrelevant by imposing a blanket prohibition on all penile-non-vaginalsexual acts under the vague rubric of ‘unnatural offences’.Though ostensibly applicable toheterosexuals and homosexuals, Section 377 acted as a complete prohibition onthe penetrative sexual acts engaged in by homosexual men, thereby criminalisingtheir sexual expression and identity.
Besides, the society too identified theproscribed acts with the homosexual men, and the criminalisation had a severeimpact on their dignity and self-worth. Section 377 was used as a tool by thepolice to harass, extort and blackmail homosexual men and prevented them fromseeking legal protection from violence; for fear that they would themselves bepenalized for sodomy. It has been repeatedlyargued that Section 377 has no place in the statutes of a modern, liberal society.The state has no business dictating the sexual orientation of consentingadults.
The Delhi high court has in the past shown that the courts can readdown the section to decriminalise gay sex. But the ideal solution is not a merereading down of the section. The legislature should recognise that the lawneeds to go and should repeal it. The government should initiate such a step bymoving a bill to remove gay sex from the purview of Section 377. That aperson’s sexual orientation is not a matter of choice, it is primarilyneurobiological at birth must be understood by one and all in a nation that issupposedly a ‘free country’ with a progressive mindset. The problem lies not ina person’s sexual choice but in the minds of the people surrounding them.