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IPC 377
Context
On September 6, 2018, Honorable Supreme Court partially repealed section 377 of Indian Penal Code, waving a new ray of hope for the LGBT community. The law for longed deemed to be a violation of the fundamental rights enshrined in the Indian Constitution.
History
The law dates back to 1860 when Lord Macaulay proclaimed a law which criminalises "carnal intercourse against the order of nature" and anyone who violates it to be imprisoned for ten years and fined. The law was in resonance with Biblical reference and mostly religious orthodoxy than rational inference.
Legal Battle
For decades civil rights activists in India termed this law an inhuman unconstitutional and demanded its repulsion and the breakthrough came from Indian judiciary. In 2001, Naaz Foundation filed a petition before Delhi High Court against section 377. However, HC dismissed the case, terming it as a mere academic challenge to the constitutionality of a legislative provision but after SC advice HC took up the case on the base of merit. In 2009 Delhi HC pronounced judgement in the case Naaz Foundation vs Government of NCT of Delhi and others, in favour of Naaz Foundation and decriminalised same-sex relationship.
However, in a review petition before the Supreme Court, the court reversed the HC's judgement in 2009. Finally, the breakthrough came on 6 September 2018 when a five-member bench headed by former Chief Justice Dipak Misra partially repealed the act.
Violation of Fundamental Rights
A five-judge constitution bench headed by Chief Justice Dipak Misra had reserved its verdict on July 17 after hearing various stakeholders for four days, including gay rights activists. Besides the CJI, the bench also comprised justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. NALSA judgement on 2014 by SC which recognised the transgender community and Right to Privacy 2017 gave a boost to the judgement.
The court found in its judgement that IPC 377 violates the fundamental rights under article 14, 15 and 21. Article 14 gives an equal right, article 15 prohibits discrimination based on sex and article 21 gives individuals privacy. The court observed that the sexual orientation of individuals could not be a cause to marginalise and criminalise them. Every individual has the right to choose partners and 'carnal' or 'oral' sex can't be termed 'unnatural offence'.
Further, the introduction of POSCO Act(2012) ensures minors from such offences. However, the court ruled that 'bestiality' will still be considered punishable under the law.
Social Life
LGBT(Lesbian, Gay, Bisexual, Transgender) constitute a very tiny portion of our population. So evidently, they are always at the mercy of the popular majority. However, the court's ruling made it clear that the rights of a section, be it a minority, can't be dictated by the majority. The decriminalisation of the act will open the social sphere for the community, who can now get medical and social treatment fairly. One of the major concern's behind Naaz Foundation's initial case in 2001 was the lack of medical access for the community and their proneness to HIV. The ruling will help the community to get better treatment now. Besides the fear of victimisation can also be excluded now as in the past 150 years over a hundred has been punished.
Way Forward
Nevertheless, the decriminalisation along can't solve the misery of the community whose sexual orientation long termed as taboo. Most importantly it is necessary to include society and make them aware of the situation of the community so that mutual understanding can be established. The LGBT community like all human being is same and their choice is their personal protected under the 'Right to Privacy'.
On September 6, 2018, Honorable Supreme Court partially repealed section 377 of Indian Penal Code, waving a new ray of hope for the LGBT community. The law for longed deemed to be a violation of the fundamental rights enshrined in the Indian Constitution.
History
The law dates back to 1860 when Lord Macaulay proclaimed a law which criminalises "carnal intercourse against the order of nature" and anyone who violates it to be imprisoned for ten years and fined. The law was in resonance with Biblical reference and mostly religious orthodoxy than rational inference.
Legal Battle
For decades civil rights activists in India termed this law an inhuman unconstitutional and demanded its repulsion and the breakthrough came from Indian judiciary. In 2001, Naaz Foundation filed a petition before Delhi High Court against section 377. However, HC dismissed the case, terming it as a mere academic challenge to the constitutionality of a legislative provision but after SC advice HC took up the case on the base of merit. In 2009 Delhi HC pronounced judgement in the case Naaz Foundation vs Government of NCT of Delhi and others, in favour of Naaz Foundation and decriminalised same-sex relationship.
However, in a review petition before the Supreme Court, the court reversed the HC's judgement in 2009. Finally, the breakthrough came on 6 September 2018 when a five-member bench headed by former Chief Justice Dipak Misra partially repealed the act.
Violation of Fundamental Rights
A five-judge constitution bench headed by Chief Justice Dipak Misra had reserved its verdict on July 17 after hearing various stakeholders for four days, including gay rights activists. Besides the CJI, the bench also comprised justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. NALSA judgement on 2014 by SC which recognised the transgender community and Right to Privacy 2017 gave a boost to the judgement.
The court found in its judgement that IPC 377 violates the fundamental rights under article 14, 15 and 21. Article 14 gives an equal right, article 15 prohibits discrimination based on sex and article 21 gives individuals privacy. The court observed that the sexual orientation of individuals could not be a cause to marginalise and criminalise them. Every individual has the right to choose partners and 'carnal' or 'oral' sex can't be termed 'unnatural offence'.
Further, the introduction of POSCO Act(2012) ensures minors from such offences. However, the court ruled that 'bestiality' will still be considered punishable under the law.
Social Life
LGBT(Lesbian, Gay, Bisexual, Transgender) constitute a very tiny portion of our population. So evidently, they are always at the mercy of the popular majority. However, the court's ruling made it clear that the rights of a section, be it a minority, can't be dictated by the majority. The decriminalisation of the act will open the social sphere for the community, who can now get medical and social treatment fairly. One of the major concern's behind Naaz Foundation's initial case in 2001 was the lack of medical access for the community and their proneness to HIV. The ruling will help the community to get better treatment now. Besides the fear of victimisation can also be excluded now as in the past 150 years over a hundred has been punished.
Way Forward
Nevertheless, the decriminalisation along can't solve the misery of the community whose sexual orientation long termed as taboo. Most importantly it is necessary to include society and make them aware of the situation of the community so that mutual understanding can be established. The LGBT community like all human being is same and their choice is their personal protected under the 'Right to Privacy'.
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