Constitution says India that is Bharat, but in practical what we observe is that there is an India and there lives a Bharat, and there is not much common between them. The recent battles in top court rooms, TV studios and public discourse has revealed those fault line much more than ever. Reason – topic of discussion is ‘Sex’ – with same sex partner or with partner of another person.
The ‘Land of Kamasutra’ has that core of free spirit which was later contained by the ‘Book of Law’ by Sage Manu. Vatsyayana in Kamasutra has explained the way to spirituality through the cage of body but bhrahminical India tried to contain the free spirit and cage it in a patriarchal society. Law book of Manu which became the founding stone of Hindu Law sees woman as subservient to Man and elaborate many rules to control women through their body, soul and spirit.
The big question one has to answer is that why India is afraid of ‘emancipated women’. Why Indian men lives in an age-old “Mother-Whore” complex when it comes to deal with women. Whether Indian Penal Code 1860 dominated by narrow view point of British morality is still valid to control the lives in 21st century India.
The debate in top court over section 377 was followed and discussed widely while the top notch lawyers tried to explain the constitutional provision from their perspective. The government, undecided on the issue, moved back and forth as it did not had any clear policy or thought. Albeit, the political leadership found itself in a cleft as same sex partnership challenged the traditional belief of its core vote bank while it jostled to project a modern image in the world.
Section 377 covers not only relation between same sex partners but also acts of unnatural sex and bestialities. In many countries in the world, same sex marriages are being recognised today. Though, against the rule of nature, the same sex partnership is projected as modern thought process which differentiates human being from other animals and makes ‘sex’ as a matter of choice instead of process of procreation. None of the religion in the world expressly allows men to use ‘sex’ as pleasure and Hindu Law book of Manu expressly says that man should approach woman only to fulfill his duty of procreation. Section 377 limits the choice of a man or woman to woman and man but Section 497 further narrow it down only to ‘Legally Married’ woman or man.
Section 497 of IPC makes it illegal for a man to have sex with a woman who is another man’s wife. The section considers the woman as ‘innocent’ and man can be sued only by husband of the woman as if she is her property. A case of adultery cannot be filed against the woman. The struggle of women for social equality also includes freedom of choice in matter of sex also but law in force does not even consider that possibility.
Argument put forward by the government in court is that decriminalization of adultery under section 497 and same sex partnership under section 377 of IPC jeopardize the social norm and status of divinity of marriage given in Hindu religion. Giving freedom to women to make choice will unsettle the society and will create problem in management of succession, paternity and morality. There is some practical aspect which may surely be troublesome for the established social norms but does this debate is also demanding freedom from the established social norms themselves.
India is at a turning point and choices made today will determine our future. We as a society as a whole need to decide that whether we want to celebrate spirit of Vatsyayana, beauty of Geet Govind and sensuality of Kalidasa’s Kumar Sambhava or we want to adhere the narrow view of British morality imposed on our culture and outlook by the colonial power. India needs to decide that whether it want to throw the last remaining yoke of colonial slavery and celebrate the true Indian-ness or to continue as a mental slave without having to understand and inculcate what India is all about and freedom it gives to live and let live.