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Supreme Court Verdict on Section 377

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September 07, 2018

Why in news?

  • A Constitution Bench of the Supreme Court has unanimously decriminalised homosexuality.
  • Click here to know more on the judicial journey of Section 377.

What were the concerns with Section 377?

"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 ten years, and shall also be liable to fine."

  • Section 377 creates a class of criminals, consisting of individuals who engage in consensual sexual activity.
  • It typecasts Lesbian, Gay, Bisexual, and Transgender, Queer (LGBTQ) individuals as sex-offenders.
  • It categorised their consensual conduct on par with sexual offences like rape and child molestation.
  • This has led to stigmatisation and condemnation of LGBTQ individuals in society.
  • It was a cause for institutional discrimination faced by the LGBTQ community in health care, which even led to ineffective HIV prevention and treatment.

What was the judgment?

  • The Bench unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex was clearly unconstitutional.
  •  The court, however, held that the Section 377 would apply to “unnatural” sexual acts like bestiality.
  • Sexual act without consent would also continue to be a crime under Section 377.

What was SC’s rationale?

  • Individual - Bodily autonomy is individualistic as it is a matter of choice and is part of dignity.
  • Sexual orientation is biological and innate, as an individual has no control over who they get attracted to.
  • Any repression of this by the state will be a violation of free expression.
  • Rights - Homosexuals, as individuals, have a fundamental right to live with dignity and possess full range of constitutional rights.
  • These include sexual orientation, partner choice, equal citizenship and equal protection of laws.
  • The State cannot decide the boundaries between what is permissible and not.
  • Society - Section 377 is based on deep-rooted gender stereotypes ingrained in the society.
  • It is a majoritarian impulse to subjugate a sexual minority to live in silence.
  • But the societal morality cannot override constitutional morality and fundamental rights.
  • Nature - The verdict noted that homosexuality was documented in 1,500 species and was not unique to humans.
  • This firmly dispels the prejudice that homosexuality is "against the order of nature".
  • Right to love - Section 377 speaks not just about non-procreative sex but also about forms of intimacy.
  • This, the court has acknowledged as the 'right to love'.
  • But the social order finds some of these ‘disturbing’.
  • It is the result of limits imposed by structures such as gender, caste, class, religion and community.
  • These limits affect the “right to love” of not just the LGBTQ individuals, but of couples who make relationships across caste and community lines.
  • Perception - The recent parliamentary re-enactment of the Mental Healthcare Act of 2017 was mentioned.
  • The present definition in the Act makes it clear that homosexuality is not considered to be a mental illness.
  • It is reaffirmed that mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, religious beliefs.
  • Awareness - The Centre was urged to take all measures to ensure that the judgment is given wide publicity.
  • Government was instructed to initiate programmes to reduce and eliminate the stigma against homosexuality.
  • Government officials and police will have to be given periodic sensitisation campaigns.

What are the shortcomings?

  • How the judgment operates on the ground is yet to be seen as recent orders on triple divorce and lynching have not had visible impact.
  • The judgment has opened up grey areas, and new guidelines will be needed.
  • e.g Say, a gay individual withdraws “consent” and lodges a complaint against their partner.
  • India’s laws on sexual assault do not recognise men as victims of rape. Police will now have to establish the principle of consent.

 

Source: The Hindu

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