Section 377 verdict: A wrong is righted, now for the rights
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| Celebs Cheer Section 377 Verdict |
What is "Section 377"?
Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. In pic: A participant from the LGBT community, “shackled” by section 377 of the Indian Penal Code, makes a silent appeal to decriminalise homosexuality in India. |
The Supreme Court of India today began hearing a bunch of
pleas regarding
Section 377 of the IPC which criminalizes homosexuality or same-sex marriage in India. |
India's take on Section 377:
Gay
sex has long been taboo in conservative India, particularly in rural areas
where nearly 70 percent of people live, with homophobia widespread. Some still
regarding homosexuality as a mental illness. Hindu right-wing groups supportive
of Prime Minister Narendra Modi's ruling Bharatiya Janata Party (BJP) have been
especially vocal, calling gay relationships a disease and a Western cultural
import. Ahead of the Supreme Court hearing on petitions filed against Section
377 of the Indian Penal Code, Bharatiya Janata Party (BJP) leader Subramanian
Swamy on Tuesday opined that homosexuality was a danger to national security.
The four-member Bench gave four separate but concurring judgements.
A five-judge Constitution Bench of the Supreme Court on Thursday decriminalised homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC).
Constitution Bench declares the 156-year-old “tyranny” of Section 377 as “irrational, indefensible and manifestly arbitrary”.
The Supreme
Court on Thursday decriminalised homosexuality with a prayer to
the LGBTQ (Lesbian, gay, bisexual, transgender, and queer) community to forgive
history for their “brutal” suppression.
A five-judge Constitution Bench, led by Chief
Justice of India (CJI) Dipak Misra unanimously held that criminalisation of
private consensual sexual conduct between adults of the same sex under Section
377 of the Indian Penal Code is clearly unconstitutional.
The court, however, held that Section 377
will apply to “unnatural” sexual acts like bestiality. Sexual acts without
consent continues to be a crime under the Section.
In four concurring opinions, the Bench
declared the 156-year-old “tyranny” of Section 377 as “irrational, indefensible
and manifestly arbitrary”.
Section 377 punished homosexuality with a
10-year imprisonment.
The prayer for forgiveness came from Justice
Indu Malhotra, the lone woman judge on the Constitution Bench. “History owes an
apology,” she reached out to the rainbow spectrum.
Justice D.Y. Chandrachud called Section 377
“Macaulay’s legacy”, which continued for 68 years despite a liberal
Constitution because of the manifest lethargy of lawmakers. He said the Section
shackled the human instinct to love. It had been a reason for tragedy and
anguish. “It is difficult to right a wrong by history. But we can set the
course for the future,” he wrote in his separate opinion.
‘It is just a step’
Justice Chandrachud said decriminalisation of
homosexuality was just a step. This case was about people wanting to live with
dignity. Citizens cannot be pushed into obscurity by a colonial law.
Section 377 discriminates against a minority
solely for their sexual orientation. It violates the right of the LGBTIQ
community to “equal citizenship and equal protection of laws”. The court held
that bodily autonomy is individualistic. Choice of partner is part of the
fundamental right to privacy.
The Bench set aside the 2013 judgment of the
court in the Suresh Koushal case.
Legal experts said this was a much-needed
self-correction of a past judicial wrong committed on the LGBTQ community. The
verdict would become the foundation for members of the community to seek
individual rights like.
The 2013 judgment upheld Section 377 and set
aside the reprieve won by the LGBTQ community through the Delhi High Court
verdict of 2009, which decriminalised homosexuality. It had cast the community
back into the shadows as “unconvicted felons”.
The court declared that once a nine-judge
Bench has declared privacy to be a part of the fundamental right to life,
nothing could stop the Supreme Court from upholding bodily autonomy and sexual
orientation as fundamental rights too.
‘LGBTQ community possesses equal rights’
The CJI, in his separate opinion shared with
Justice A.M. Khanwilkar, held that the LGBTQ community possesses equal rights
as any other citizen. Any societal repression of their innate and biological
sexual orientation is against the fundamental right to free expression.
Homosexuality is their order of nature.
The CJI said the community needs the rainbow
of hope for the sake of humanity. They should be allowed to live with dignity
and without pretence about their identity. This verdict is the beginning of a
journey towards greater dignity, equality and liberty.
‘Fundamental right to live with dignity’
Justice Rohinton F. Nariman, in his separate
opinion, held that homosexuals have a fundamental right to live with dignity.
They are entitled to be treated as human beings and should be allowed to imbibe
the spirit of fraternity.
Justice Nariman embraced the ''Yogyakarta''
Principles, which recognise freedom of sexual orientation and gender identity
as part of human rights, saying they “animate” the right to equality and equal
protection by laws.
Justice Chandrachud said medical science
should stop being a party to the stigmatisation of homosexuals by “trying to
cure something that is not even a disease”. Medical professionals and
counsellors should tweak their own attitude. Stigmatisation seriously affects
members of the LGBTQ community.
Justice Chandrachud pointed out how
variations in sexual orientation have become a reason for blackmail on the
Internet. Quoting Lenoard Cohen, he described how “shadows of a receding past”
still controlled the quest of LGBTQ community for fulfillment.
Is 'Section 377' legitimate?
Coming
from different parts of the country with diverse religion, age, sex and other
backgrounds, the petitioners said that section 377 legitimises the stigma
associated with sexual orientation and its expression something which is
essential, fundamental, intrinsic and innate to an individual. In pic:
LGBT community members participate in 'National Coming Out Day' to mark the
anniversary of High Court's verdict amending Section 377, in Chennai.
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The question is protection under the fundamental right to
life
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Talks but no action?
June
is celebrated worldwide as the Pride Month, but the community members and
activists feel that the month's significance is limited to marches and panel
discussions without any concrete steps on the ground. LGBTQ activist Mohnish
Malhotra, who has been organising Pride Parade in the city, said violent
incidents against the community members have become a common sight.
Need of the hour to acknowledge LGBTQ community
Activists
feel that the community has to face homophobia on a daily basis, with people
refusing accommodation and other basic needs to the LGBTQ members. "The
LGBTQ members have to keep their sexual preferences hidden so that they are
able to live a normal life," said lawyer-activist Anand Grover, who is a
founder-member of Lawyers Collective. "The mindset of the people can only
be changed through interaction with the community. The only way we can move
forward is when we remove the tag of 'criminals' by curbing section 377 of
IPC," he said.
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Section 377 verdict: Homosexuality not unique to humans,
says Supreme Court
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Homosexuality: Not an illness
The
Indian Psychiatric Society (IPS) had recently said that homosexuality was still
viewed as a mental illness. "We founded a taskforce last year for dealing
with queer issues. We had said that homosexuality is not a mental illness,"
IPS president Ajit V Bhide said, adding that section 377 needed to be amended.
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