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Daily The Hindu Editorial Analysis IST September 2017 By Jatin Verma Educator Unacademy unacadem
Is it time to review Section 377?-A Debate Background: Naz Foundation challenged the constitutional validity of section 377 before the Delhi High Court and received a favourable verdict when the court held that the essence of Section 377 goes against the fundamental rights of citizens. The court declared that the Section, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15. It further ruled that the provisions of Section 377 would continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. . The Delhi High Court rightly held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people. Gay men are seen as criminals by the law because of Section 377,and thus by other members of society. This judgment lifted the criminal restrictions on gay men. . Koushal Judgement of Supreme Court: Delhi H.C. judgement was short-lived as the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) set aside the Delhi High Court judgment.
. Arguments in Favour of Scrapping Section 377 Pre- British era: Section 377, titled "unnatural offences", was enacted by the British after we lost our First War of Independence in 1857.They imposed their religio-cultural values upon us. Prior to that, sexual activities, including amongst homosexuals,were not penalised in India. Discriminatory in nature I.Though it textually applies to all persons, homosexual and heterosexual, it has been targeted at gay men. 2. Out of sync with other laws: The Koushal judgment did not notice that: After Criminal Law(Amendment)Act 201 3 the rape law itself had changed whereby instead of mere restriction on penile-vaginal non-consensual sex, it now includes a range of sexual activities including digital and object penetration Consent is considered to be irrelevant. In the case of children, law presumes no consent. Therefore all sexual acts between an adult and a child are penalised. Even PoCSO Act creates a provisoin for consensual sex], 3.Violation of Article 14 &15:Section 377 is now restricted only to gay men and perhaps transgender people.
. After the Koushal verdict, there have been a large number of cases where gay men are being blackmailed by their acquaintances and the police in connivance with each other. These cases have sharply risen in the last three years. . Though there is recourse in law, no gay man can take recourse to it because Section 377 itself makes gay men's sexual practices illegal and would put them in danger of being arrested. No human being ought to be subject to such acts on account of a natural sexual affection for another human being Winds ot progressivism around: TiIThe latest judgment on privacy by the Supreme Court has observed that Koushal has not appreciated the fundamental right to privacy in its application to Section 377.The Koushal verdict is dead; only its burial remains. [il The British, who enacted the law, got rid of it in the 1960s in England. Many countries have got rid of such laws, either by amendment of legislation or vide decisions of the court. India now remains with countries which India would not like to be associated with otherwise. . While most people gained independence from the British, the LGBT community, and gay men in particular, in India have remained chained to Section 377. It is high time that the chains are broken and we get rid of Section 377 so that gay men and the LGBT community can live thein lives with dignity.
Arguments against scrapping Section 377 Any right survives only if itis not exercised in a manner thatit tramples upon the similar rights of another person The apex court, which reversed it on several grounds, mainly that: i] Section 377 does not violate the Constitution, [ii]there was little evidence that the provision was being misused, misuse of law does not make it invalid, and [iijmost importantly, it was only for the legislature to repeal or amend the law.[Judicial selectivism or populism- pandering to majoritarian voice] . Regaining fervour but why now! The debate has regained fervour after the privacy judgment. Specifically referring to the rights of the LGBT community, the court said: [i] these are not"so-called" rights but are real rights founded on sound constitutional doctrine [ii] They inhere in the right to life.They dwell in privacy and dignity.They constitute the essence of liberty and freedom [ii]lt further added that sexual orientation is an essential component of identity, and equal protection demands protection of the identity of every individual without discrimination. It goes on to state that privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation.
All religions consider homosexuality a sin, a conduct against the order of nature, and hold that an individual falling in this category be considered a criminal. A Science-Biology Angle to the issue: However, by the end of the 19th century a strong opinion emerged that it was a pathological condition and that the person should not be blamed for such conduct. Later, a dominant view emerged that homosexuality was inborn and therefore not immoral, and it was not a disease. However, there is still no unanimity on the issue and individuals continue to hold diverse opinions Cautionary Note: While the progressive and timely judgement of the apex court needs to be celebrated, one should not be oblivious of the dangerous path we may tread on if the right to privacy is not tempered with reasonable restrictions.Any right, and more so a fundamental right, survives only if it is not exercised in a manner that it tramples upon the similar rights of another person. . Protecting the 'vulnerable': The question that arises is, whether by repealing Section 377 we will achieve the objective of privacy and giving equal rights to individuals of any sexual orientation? . The rights of individuals belonging to the LGBT community need to be recognised, and these persons must be treated with dignity Nevertheless, the law must ensure that the rights of others, especially those who may be vulnerable and may be easily tricked into unacceptable behaviour or physical intimacy by another individual with a difterent sexual orientation, must also be protected
To ensure that he less children and women are not victims of such behaviour, we may have a modified provision in the law to punish such conduct against innocent children and non-consenting females who may not have the courage to resist such demands from their husbands. Balancing the two sides: We are a country of many religions.Who am I to impose my view on others? That's the beauty of our Constitution. . Religion and rights: We are living in a democratic society governed by our Constitution.And the Constitution gives certain fundamental rights to citizens and one of the rights is the choice to lead the life one wants. Nobody has the right to disturb and intrude into someone's private life. Everybody has the right to lead the life they want. But such choices should not spill over onto the streets by way of an endorsement of this style of life so as to attract other people Would you say homosexuality should be decriminalised? Writer talks in the context of the Constitution and in the context of religion and morality. . As far as the Constitution is concerned, nobody has the right to say how an individual should conduct his life, what to eat and what not to eat, what to wear, or comment about people's sexual activities. The court has also observed that this right cannot be abrogated by a community in the name of majoritarian view.
. So far as religious morality is concerned, homosexuality is prohibited by Islam. But the Constitution provides fundamental rights we are not an Islamic country but a democratic country.But this does not mean a licence to do anything The order on privacy has to be seen in the context of freedom to religion and the private lives of individual citizens.
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