1.Is it time to review Section 377? (The Hindu)
1.Is it time to review Section 377? (The Hindu)
Synoptic line: It throws light on the relevance of section 377 in the wake of recent times. (GS paper II)
- Following the Supreme Court’s Justice K.S. Puttaswamy (Retd) v. Union of India decision, popularly referred to as the Right to Privacy judgment, a number of odes have been mentioned to this momentous affirmation of core constitutional principles.
- There has been a discussion of the way in which the judgment demolishes the underlying assumptions of Suresh Kumar Koushal v. Naz Foundation (2013), which upheld the constitutional validity of Section 377 of the Indian Penal Code. The Right to Privacy judgment is a victory for queer persons as well in terms of how it challenges the language of that prior decision, and further, in how it opens out the realm of possibilities for queer rights under the law.
LEFT, RIGHT, CENTRE VIEW
- According to the leftist opinion, 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.
- Different courts have interpreted differently the Section 377 which penalises non-procreative sexual acts and any act of sexual perversity.
- The Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) 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. This judgment lifted the criminal restrictions on gay men.
- However, it was short-lived as the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) set aside the Delhi High Court judgment. The Koushal judgment did not notice that 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.
- No gay man can take recourse because Section 377 itself makes gay men’s sexual practices illegal and would put them in danger of being arrested. Consent is considered to be irrelevant. It makes gay men feel like lesser human beings because they are seen as criminals by law. That impairs not only their dignity, but forces them to go into the closet.
- In the latest judgment on privacy by the Supreme Court, it 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.
- 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 their lives with dignity.
- According to the rightist view, Delhi High Court held that the essence of Section 377 goes against the fundamental rights of citizens. The court declared that the Section 377, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
- However Supreme Court has mentioned that Section 377 does not violate the Constitution, there was little evidence that the provision was being misused, misuse of law does not make it invalid, and most importantly, it was only for the legislature to repeal or amend the law. The LGBT community dwell in privacy and dignity.
- After the privacy judgement the debate has regained fervour as the rights of the LGBT community, is not “so-called” rights but is real rights founded on sound constitutional doctrine. They inhere in the right to life.
- Rightist says 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.
- There is still no unanimity on the issue and individuals continue to hold diverse opinions. Religions views considers homosexuality a sin, a conduct against the order of nature, and hold that an individual falling in this category is considered a criminal.
- 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.
- With the recent progressive judgement, 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.
- 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 different sexual orientation, must also be protected.
- There is need to modify provisions in the law to punish conduct against innocent children and non-consenting females who may not have the courage to resist such demands from their husbands.
- A centre view mentioned that 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. In this context nobody should be harassed.
- 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 Supreme Court was right to make this observation in the right to privacy judgment, delivered by a nine-judge Bench, and in another judgment in another case of instant triple talaq, as the privacy judgment wherein personal laws have been reaffirmed as being protected under the Constitution.
- So far as religious morality is concerned, homosexuality is prohibited by Islam. But the Constitution provides fundamental rights and we are not an Islamic country but a democratic country. Though 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. To protest the criminality of Section 377 is the right of every citizen. We have to respect our Constitution. We are a country of many religions; we cannot impose our personal views on others, that’s the beauty of our Constitution.
Question– Explain the implications of revoking section 377 on the LGBT community in India.