The five judge bench of the Supreme Court is set to take a call on Section 377.
The earlier judgement was reversed only because the court held that:
" 2009 order of the High Court is 'constitutionally unsustainable as only Parliament can change a law, not courts"
- Justice G.S. Singhvi and Justice Mukhopadhyay.
December 11, 2013
There seems to be absolutely no reason, moral or prudential, why we should criminalize consensual gay sex or any of the LGBT rights.
1. Section 377 offends the guarantee of equality enshrined in Article 14 of the Constitution because it creates an unreasonable classification and targets homosexuals as a class.
2. 'Public animus' and disgust towards a particular social group or vulnerable minority, if held, is not a valid ground for classification under Article 14.
3. Article 15 of the Constitution forbids discrimination based on certain characteristics including sex. The Court holds that the word 'sex' includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible.
Also, we need to understand the concept of 'gender' or 'sex' comprehensively.
It is biologically wrong to attribute a particular sex to an infant just on the basis of its reproductive organs. An individual's physical features and one's sexual orientation, are two very different things,
Our ancestors were so convinced of the divinity of the 'two-sex' model that the very presence of a 'third gender' was no less than a sin!
However, science has proven that bisexuality is as natural as unisexuality.
Many thinkers and feminist scientists have put forward theories explaining how and why gender and sex are often mixed up.
"Gender is constructed by relations of power, social norms and constraints that determine what is male body and what is female body."
- Alison Jagger
Our understanding of Gender or Sex is shaped by cultural factors rather than biology. Society has pre-conceived notions of how a person of a sex is 'supposed' to behave. This reflects in our division of qualities like 'caring, loving, soft and kind' for women and ' brave, robust, strong, rational' for men.
Post modernist thinkers beleive sex is a 'fluid' concept. For instance, Judith Butler explains how there maybe an element of male and female in everybody and it may not be necessarily stable all the time.
It is high time we understand that sex depends totally on biological factors. It is natural and beyond bi-polar division.
