LGBT Rights – Transgender Bill, Sec. 377, etc.

LGBT Rights – Transgender Bill, Sec. 377, etc.

Parliament passes Transgender Persons (Protection of Rights) Bill, 2019Bills/Act/Laws

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Transgenders and their upliftment measures



The Parliament has passed the Transgender Persons (Protection of Rights) Bill, 2019, with the Rajya Sabha approving it by a voice vote. The Lok Sabha had already passed the bill in December 2018.

Various provisions of the Bill

Defining Transperson

  • The Bill defines a transgender person as one whose gender does not match the gender assigned at birth.
  • It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.

Prohibition against discrimination

  • It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public.
  • Every transgender person shall have a right to reside and be included in his household.
  • No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.

HRD measures

  • A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
  • Educational institutions funded or recognised by the relevant government shall provide inclusive facilities for transgender persons, without discrimination.
  • The government must provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.

Grievances redressal

  • The National Council for Transgender persons (NCT) chaired by Union Minister for Social Justice, will advise the central government as well as monitor the impact of policies with respect to transgender persons.
  • It will also redress the grievances of transgender persons.

Legal Protection

The Bill imposes penalties for the offences against transgender persons like bonded labour, denial of use of public places, removal from household & village and physical, sexual, verbal, emotional or economic abuse.

LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] The afterlife of Section 377Bills/Act/Lawsop-ed snapSC Judgements


Note4students

Mains Paper 1: Indian Society Salient features of Indian Society, Diversity of India. Effects of globalization on Indian society

From the UPSC perspective, the following things are important

Prelims level: Basic knowledge of the SC decision on Section 377.

Mains level: The news-card analyses the deep-rooted social prejudices that still haunts the LGBTQ community even after the striking down of Section 377 by SC, in a brief manner.

Context

  • Recently there have been debates that the partial strike-down of Section 377 isn’t enough. Deep-rooted prejudices still haunt the LGBT community.

Background

  • A series of applications for refugee status were filed by members of India’s LGBT community living abroad in the years leading up to the Supreme Court’s 2018 judgment on Section 377 (Indian Penal Code).
  • Courts in Britain and Australia took evidence on whether those from the community faced a real risk of persecution if they returned to India.
  • Soon after the SC judgment in September, an immigration tribunal in New Zealand was tasked with deciding whether a gay man risked serious harm upon return to India.
  • In granting his application for refugee status, the tribunal arrived at a sobering conclusion that while no longer facing the threat of prosecution under Section 377… the social attitudes that have been underpinned by that legislation will not have evaporated.
  • According to the tribunal, Section 377 was the symptom rather than the cause of social prejudice against the community.

SC’s decision on Section 377

  • Supreme Court declared Section 377 unconstitutional to the extent that it criminalises consensual sexual activity between adults in private.
  • However, Section 377 – together with the social prejudices that silently accompany it – continues to live an afterlife.

Social prejudice against the LGBTQ community

  1. The Police continues to harass members of the community
  • There are reports that the police continues to harass members of the community (particularly transgender people) relying on Section 377 together with other criminal offences, including offences addressing prostitution and public nuisance.
  • This undercuts the letter and spirit of the SC decision, which required that all ongoing prosecutions under Section 377 be abandoned and no fresh prosecutions be commenced.

Section 66A of the IT Act declared unconstitutional but continue to be enforced

  • The aftermath of the SC decision striking down section 66A of the IT Act offers a cautionary tale of how statutory provisions that are struck down as unconstitutional may continue to be enforced.
  • Close to four years after the Court’s judgment, the police has continued registering FIRs as though section 66A remains constitutionally valid.
  • A study by the Internet Freedom Foundation attributes this to a number of factors, not least the failure to adequately notify the police and the continuing presence of Section 66A on the statute book (since the Court’s authority is restricted to striking down a statute, not removing it from the statute book altogether).

SC did not strike down Section 377 in its entirety

  • In some respects, Section 377 could present a wider range of enforcement challenges. This is because unlike Section 66A, the SC did not strike down Section 377 in its entirety.
  • Instead, it chose to strike it down only to the extent that it applies to consensual sexual activity between adults in private.
  • Non-consensual sexual activity, as well as sexual activity involving children, can continue to be prosecuted.
  • Therefore, the briefing to the lowest levels of enforcement needs to convey the nuanced message that Section 377 may be enforced in some ways, but not others.
  1. Achieving equal citizenship for members of the LGBT community: Dislodging deep-seated prejudices
  • The SC judgment represented the tip of the iceberg in terms of achieving equal citizenship for members of the LGBT community.
  • This is exemplified by the recent comments of the Indian Army chief noting that homosexuality would not be tolerated in the armed forces.
  • Implicit in that comment are deep-seated prejudices, including that homosexuals are inherently “weaker” or more likely to be tempted or distracted during the performance of their duties than their heterosexual colleagues.
  • Until these prejudices are dislodged, LGBT people will continue to suffer discrimination.

Way Forward

  • The SC chose to restrict its decision to the question of decriminalization without commenting on other rights that would extend equal citizenship to the community may have been the product of an intelligent litigation strategy.
  • It was widely accepted that the Court’s observations in the right to privacy judgment would inevitably result in Section 377 being struck down.
  • While the government left the constitutionality of Section 377 to the “wisdom of the court”, it argued that the Court should only go so far and no further.
  • The current government and its successor following the next election cycle must hold themselves to the other side of this argument.
  • Otherwise, Section 377 will continue to cast its shadow long after the Court’s historic decision.
LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] Freedom’s second comingop-ed snap


Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Section 377

Mains level: Decriminalisation of sex between consenting adults and its relation to fundamental as well as human rights


Context

Section 377 verdict

  1. The Supreme Court has decriminalised sex between consenting adults in private under Section 377
  2. Section 377 IPC is irrational, indefensible and arbitrary, the Supreme Court ruled
  3. The sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution
  4. The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights
  5. Respect for individual choice is the very essence of liberty under law

Section 377 wrongly used

  1. Section 377 IPC assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community
  2. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life
  3. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves

Impact of the judgment

  1. It has freed the LGBTQI communities from the yoke of a colonial law
  2. The LGBTQI communities can now walk tall and openly with their heads proud and held high as equal citizens with dignity, liberty and fraternity

Timeline of events

  1. Mx Of Bombay Indian Inhabitant vs M/S. Zy And Another (1997) verdict directed that all HIV positive persons who were functionally fit to do the work could not be denied a job in the state or public sector
  2. Naz Foundation filed the writ petition in the Delhi High Court
  3. It was dismissed by the Delhi High Court on the ground of maintainability
  4. In the challenge to that order, the Supreme Court firmly said that the matter must be decided on merits and not technicalities
  5. Ultimately, the Delhi High Court, in a seminal judgment in Naz Foundation, pronounced the decriminalisation of sex between consenting adults in private
  6. The euphoria of the high court verdict was short lived because the Supreme Court in Suresh Kumar Koushal vs Naz Foundation trumped it
  7. The first blow to Koushal came with the NALSA vs Union of India (2014) judgment which granted gender recognition on a self-identification basis to the transgender communities
  8. The privacy judgment of KS Puttaswamy vs Union of India and Others (2017) held that the treatment of privacy in Koushal was wrong
  9. Navtej Johar vs Union of India case reaffirmed Delhi HC’s verdict of Naz foundation in September 2018 judgment

Challenges on equality and discrimination

  1. The LGBTQI communities in India have not received their rightful share in all spheres of life
  2. They have been discriminated against in employment, in education, services and all other spaces, both in the public and, especially, the private sector
  3. There is no law at the moment which removes this discrimination
  4. Similarly, the law on rape is inadequate to address non-consensual sex other than within the binary of man-woman sex
  5. Such is also the case with sexual harassment

Way Forward

  1. There will be the demand for a same-sex marriage law
  2. Though that may take time, as it has in many other countries, a civil partnership law can easily be brought in as an interim measure
LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] Who’s responsible for modernizing a 150-year-old law?op-ed snapPriority 1SC Judgements


Note4students

Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms & institutions

From UPSC perspective, the following things are important:

Prelims level: Fundamental Rights

Mains level: Right to privacy and its role in the repeal of Section 377


Context

Debate over Section 377

  1. A five-judge bench of the Supreme Court just concluded its hearing on a law that traces its history back nearly 500 years
  2. Section 377 of the Indian Penal Code (IPC) is modelled on Britain’s Buggery Act of 1533
  3. The “vice” of sodomy and bestiality that forms the basis of this offence in today’s Section 377 can be traced directly to that ancient law

Origins of Section 377

  1. Section 377 reads as follows: “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 a fine.”
  2. The law found its way to India when the architect of India’s IPC in 1860, Thomas Macaulay (often credited with bringing English education to India), added it into the code
  3. The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code

Delhi HC exclusion

  1. In a landmark judgement in 2009, the Delhi high court, opining on Section 377, excluded acts of carnal intercourse by consenting adults in private
  2. The court found Section 377 to be inconsistent with the fundamental rights under Article 13(1) of the Constitution
  3. Additionally, it was found to be in violation of the right to privacy and dignity (Article 21), freedom of expression and right to equality (Article 19 (1) and Articles 14 and 15)
  4. The judgement also stated that it would unfairly target the LBGTQ+ community because the acts that are criminalized are closely associated with homosexuality
  5. The Delhi bench, adding practicality to wisdom, said that “this clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report”
  6. This report suggests the complete recast of several sections of the IPC, and, in so doing, recommends the deletion of Section 377 altogether

SC’s disagreement with Delhi HC

  1. A two-judge bench of the Supreme Court overruled the Delhi high court judgement on the grounds that it was legally unsustainable
  2. The bench took a literal and technical view rather than the wider sweep that the Delhi high court had applied, putting legal technicality above judgement and wisdom

Philosophical dichotomy prevails

  1. This philosophical dichotomy is at the root of the legal debate on Section 377
  2. One side (the literalists) holds that Parliament must enact laws that the judiciary should enforce, and, therefore, it is up to Parliament to change the law
  3. The other side (the pragmatists) has always maintained that the courts must opine if Parliament is unable or unwilling to modernize a 150-year-old law

SC might favour Delhi exclusion

  1. There have been many statements made by the bench that make it sound likely that the court will rule in favour of the Delhi exclusion
  2. Justice Rohinton Fali Nariman has said that the whole object of the fundamental rights chapter is to give power to the court to strike down laws that majoritarian governments do not touch due to political considerations
  3. If Section 377 of the IPC goes away entirely, there will be anarchy
  4. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent
  5. One other factor in favour of the Delhi exclusion is an intervening and major judgement on privacy made in the Puttuswamy case
  6. A nine-judge bench upheld the right to privacy as a constitutional right in 2017
  7. That judgement will likely combine with a pragmatist view and offer the Delhi exclusion on Section 377

Judicial overreach or judicial interpretation

  1. The broader question on whether the right to privacy in the Puttuswamy case and the Delhi exclusion on Section 377 imply judicial overreach or merely judicial interpretation in the context of weak and highly political governments, remains
  2. The nine-judge bench for Puttuswamy and the five-judge bench on Section 377 (if they rule in favour of the Delhi exclusion) will make it settled law for now

Way Forward

  1. The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant
LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] Beyond Section 377Priority 1SC Judgements


Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, the following things are important:

Prelims level:  Section 377

Mains level: The newscard highlights the issue of India’s sexual minorities that need not only decriminalization but rights and protections.


News

Same-gender sex

  1. It remains a crime in the country ever since the constitutional validity of Section 377 of the IPC was upheld in Suresh Kumar Koushal (2013) Case
  2. What is Section 377: It criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community(lesbian, gay, bisexual, transgender, queer, intersex)

Reconsideration by Supreme Court

  1. The Supreme Court is presently hearing a clutch of petitions to strike down Indian Penal Code Section 377, which criminalises same-sex relations between two consenting adults in private
  2. One of the lowest moments for human rights in India came in 2013 when the Supreme Court reversed the progressive 2009 judgment of the Delhi High Court reading down Section 377.
  3. Though supportive in its initial observations, surprisingly, the Supreme Court has also said that it will concern itself only “with the question of the validity of Section 377, and examine the correctness of the Supreme Court’s 2013 judgment”.

Old judgement, defies Constitutional Validity

  1. This reconsideration tries to interpret a broader human rights and justice issue as a matter of pure constitutional validity.
  2. The law is not abstract and it’s important to consider how insufficient law impacts the lived experiences of human beings.
  3. Instead of focusing on the question of validity alone, the Court also needs to concern itself with how current laws impact the lives of the LGBTQI community.
  4. This judgment stands as a reminder that rights that ensure inclusiveness, equality, and freedom are the fundamental values of this republic.

Court favors Individual Privacy: Puttaswamy vs. Union of India Case

  1. There is also the matter of the Court’s own precedent in another recent ruling — one that found in favour of individual privacy — in the case of Puttaswamy vs. Union of India which terms “sexual orientation” an essential attribute of “identity” and “privacy”.
  2. It terms discrimination on the basis of sexual orientation as deeply offensive to the “dignity and self-worth of the individual”.
  3. It terms the rights of India’s sexual minorities as those “founded on sound constitutional doctrine” effectively making Section 377 unsustainable.
  4. In principle, it maintains that sexual orientation must be protected and lies at the heart of the fundamental rights guaranteed by the Constitution under Articles 14, 15 and 21.

Freedom in the absence of protection

  1. Court needs to expand the ambit of this discussion to include other issues such as the right to form partnerships, inheritance, employment equality, protection from gender-identity-based discrimination, and so on.
  2. Instead of merely considering the petition as a narrow legal matter, it should examine the issue from the perspective of an institution that is committed towards ensuring equality for all.
  3. Without these rights, sexual minorities will continue to face unequal treatment, abuse, discrimination in workplaces and housing, violence, and denial of recognition.
  4. The Court should also consider closely the fact that individual dignity and freedom cannot be achieved without equal rights.

Battling Patriarchy

  1. There is sufficient evidence to show that suicide rates are higher among sexual minorities.
  2. Moreover, this lack of rights and protections feeds a homophobic culture that overemphasises and further empowers patriarchy and masculinity.
  3. Because of widespread homophobia, gay men and women create and inhabit sub-cultures of self-hate, internalised homophobia, and oppression.
  4. Public health evidence also indicates a clear relationship of a lack of social acceptance and legal rights with substance abuse, violence, isolation, and mental illness.

Way Forward

  1. A rights-based framework is intricately tied up with India’s quest for social and economic development.
  2. It’s time the Court recognised that India’s sexual minorities need not only decriminalization but rights and protections that help them build productive lives and relationships irrespective of gender identity or sexual orientation.
  3. They need an anti-discrimination law that empowers them and places the onus on the state and society to change.
LGBT Rights – Transgender Bill, Sec. 377, etc.

SC notice to govt. on petition to outlaw Section 377


Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Section 377, Article 21 of the Constitution

Mains level: Suresh Kumar Kaushal versus Naz Foundation case and its implication on human as well as fundamental rights


Striking down section 377

  1. The plea seeks the ‘Right to choice of sexual orientation’ to be declared as part of the fundamental right to life and personal liberty under Article 21 of the Constitution

Revisiting its previous ruling

  1. SC has decided to revisit a December 2013 verdict of the Supreme Court in Suresh Kumar Kaushal versus Naz Foundation
  2. It dismissed the LGBT community as a negligible part of the population while virtually denying them the right to choice and sexual orientation
  3. The reason for review given by SC was ‘a section of people cannot live in fear of a law which atrophies their right to choice and natural sexual inclinations’
  4. Societal morality changes with time and the law should change pace with life
  5. The court observed that what is natural for one may not be natural for the other, but the confines of law cannot trample or curtail the inherent rights embedded with an individual under Article 21 (right to life)

Back2Basics

Section 377 of the Indian Penal Code

  1. Section 377 is an archaic law that was introduced during the British era in the 1860s and makes gay sex a crime for which the punishment can be a life term
  2. This also has implications for heterosexuals, as consensual sexual acts of adults – oral and anal sex in private – are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code
  3. Section 377 of the Indian Penal Code states, “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”
  4. In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution
  5. In 2013, the Supreme Court canceled the Delhi high court order and re-criminalized homosexuality. It said that it was the job of the parliament to decide on scrapping laws
LGBT Rights – Transgender Bill, Sec. 377, etc.

Supreme Court refers plea to decriminalise homosexuality under Sec. 377 to larger Bench


Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Section 377 of the Indian Penal Code, Suresh Kumar Kaushal vs. Naz Foundation case, NALSA case, right to privacy case, Article 21 (right to life)

Mains level: Transgender rights and judiciary’s role in ensuring their implementation


Petition to quash Section 377 of the Indian Penal Code

  1. The Supreme Court has referred to a larger Bench a writ petition filed by five petitioners to quash Section 377 of the Indian Penal Code which criminalises homosexuality
  2. The apex court said a section of people cannot live in fear of the law which atrophies their right to choice and natural sexual inclinations
  3. It said societal morality changes with time and law should walk and change pace with life

SC to revisit its previous decision

  1. SC decided to revisit its December 2013 verdict in Suresh Kumar Kaushal vs. Naz Foundation which dismissed the LGBT community as a negligible part of the population
  2. It also virtually denied them the right of choice and sexual orientation
  3. SC observed that judgments emphasising the transgender identity in the NALSA case and the observations made by a nine-judge Bench in the right to privacy case upholding the right to sexual orientation and choice of sexual partners warrant a relook into its dismissive verdict in the Naz case

Consensual sex requires more protection

  1. The court observed that what is natural for one may not be natural for the other, but the confines of law cannot trample or curtail the inherent rights embedded with an individual under Article 21 (right to life) of the Constitution
  2. Individual autonomy and individual natural inclination cannot be atrophied unless the restrictions are determined as reasonable
  3. The court said the concept of consensual sex may require more protection
LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] Target Section 377: On decriminalising gay sexop-ed snap


Image result for Section 377

Image source

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Once you are done reading this op-ed, you will be able to attempt the below.

By the latest Supreme Court verdict, sexual orientation is an aspect of the right to privacy and an inalienable part of human dignity, freedom, and personal liberty. Comment

From UPSC perspective, the following things are important:

Prelims level:  Section 377

 Mains level: Issues related to LGBT (Lesbian, Gay, Bisexual and Transgender) rights


News

Context

  • The SC has laid the foundation to decriminalise consensual gay sex

Same-gender sex

  1. It remains a crime in the country ever since the constitutional validity of Section 377 of the IPC was upheld in Suresh Kumar Koushal (2013) Case
  2. What is Section 377: It criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community(lesbian, gay, bisexual, transgender, queer, intersex)

Court’s observations

  1. While declaring that the right to privacy is a fundamental right and an inherent component of human liberty and dignity, the nine-judge Bench has observed that the rationale behind the Koushal judgment is flawed and unsustainable
  2. It has said the rights of LGBT persons are real rights founded on sound constitutional doctrine and not “so-called rights” as the earlier Bench had described them disdainfully.
  3. The claim made in Koushalthat there was no need to challenge Section 377 because the LGBT community constitutes only a minuscule minority has been completely discredited.
  4. It was unreasonable to advance the view that constitutional protection is available to a group based on its size
  5. This week’s ruling on privacy rights contains a clear enunciation of the constitutional basis for protection of rights based on sexual orientation.
  6. Transgenders, even though insignificant in numbers, are entitled to human rights, another Bench had observed in National Legal Services Authority (2014), in a subtle hit at the “minuscule minority” formulation in Koushal.
  7. Significantly, it advocated the adoption of the Yogyakarta Principles

What is Yogyakarta Principles

  1. These are norms on gender identity and sexual orientation adopted by human rights experts in 2006 in Indonesia.
  2. A key principle is that discrimination based on sexual orientation and gender identity must end
  3. By commending this norm, the court has located sexual orientation not only as a freedom flowing from the right to privacy, but as demanding of non-discriminatory treatment.
LGBT Rights – Transgender Bill, Sec. 377, etc.

Progressive move on transgenders


  1. News: Prime Minister told BJP MPs that the Govt is serious about getting the Transgender Bill granting certain protections and a legal status to the transgender community
  2. PM: A progressive move being taken by the Govt, and urged MPs to reach out to the community to educate them on the finer points of the Bill
  3. Background: The Bill was first cleared as a private members Bill in the Rajya Sabha, and now the Ministry of Social Justice and Empowerment is to pilot it in the Lok Sabha as a Govt Bill
LGBT Rights – Transgender Bill, Sec. 377, etc.

SC observes that gays, lesbians, bisexuals are not third gender


  1. News: The Supreme Court (SC) clarified that its earlier verdict did not include lesbians, gays and bisexual persons under the category of transgenders
  2. Context: In 2014, the SC had recognised transgenders as a “third gender” and directed the government to ensure a dignified life for them
  3. However, the government has still not implemented the 2014 verdict and has returned to the SC seeking further clarifications
LGBT Rights – Transgender Bill, Sec. 377, etc.

Re-examine colonial laws, says Amartya


  1. Context: The colonial laws that still govern us even after 68 years of Independence
  2. Opinion: These colonial laws must not remain unchallenged
  3. Law’s in Question: Sec 377 of IPC criminalises homosexuality and under Sec 295A of IPC, a person could be sentenced for hurting religious sentiments of the Indian Penal Code
LGBT Rights – Transgender Bill, Sec. 377, etc.

Five-judge Constitution Bench to take a call on Section 377


Provision denies rights to privacy and dignity, court told.

  1. The SC referred a batch of curative petitions against Section 377 of the IPC.
  2. A colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private.
  3. A 3-judge Bench gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity.
  4. This results in gross miscarriage of justice.
  5. The petitions pose several questions with “constitutional dimensions of importance”.
  6. As per the apex court’s Rupa Hurra judgment in 2002, the Bench considering curative pleas should necessarily have the 3 top judges of the SC.
LGBT Rights – Transgender Bill, Sec. 377, etc.

Whose law is it anywayop-ed snapSC Judgements


Those making a cultural case for Section 377 need lessons in South Asian history.

  1. Section 377 of the Indian Penal Code, criminalising gay sex, which was upheld by the Supreme Court, was passed in 1860 by the British who were then steeped in Victorian mores.
  2. Today, while the former colonisers have ensured equality through legislation, irrespective of sexual preference, for their citizens.
  3. Indian politicians are clinging to the cloak of colonialism and representing it as Indian culture.
  4. India is not one culture. It is and always has been a mosaic of cultures.
  5. Mid-18th century South Asia was teeming with communities that allowed sexual freedoms which left the colonisers very uneasy.
  6. Most laws passed by the British from the mid-19th century onwards,including Section 377, emerged from their cultural views, not ours.
  7. The recriminalisation of gay sex will also have high economic costs.
  8. The law can also be misused against political opponents, criminal conviction of Malaysia’s former deputy prime minister, Anwar Ibrahim, of sodomy being a case in point.

IPC & the need for modernisation


 

The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens.

Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said that the IPC, 1860 requires a thorough revision to meet the needs of the 21st century. Click here to know everything about sedition law

History:

  • The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington MacaulayAnswer in comments.>
  • It came into force in British India(but not princely states) during the early British Raj period in 1862
  • After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code and later in B’desh also
  • Jammu and Kashmir does not follow IPC but has enacted a separate code known as Ranbir Penal Code (RPC) which is based on IPC

Some notable points:

  • The IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism
  • It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire
  • Today, it is the longest serving criminal code in the common-law world
  • Today, most of the commonwealth follows the IPC

Law Commission on IPC:

  • 42nd Report (1971)– Law Commission of India for the first time had recommended the repeal of Section 309 (criminalization of suicide)
  • 172nd Report (2000)– Recommended deletion of Section 377 (criminalization of unnatural sexual offences)
  • 210th Report (2008)– Recommended Humanization and Decriminalization of Attempt to Suicide under Section 309

Past attempts at amendment:

  • Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the Law Commission in 1971 recommending it
  • Also the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha
  • As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times
  • Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case

Why amend IPC?

  • The philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy <designed to meet colonial needs to subjugation and exploitation of India and Indians, sedition law for instance>
  • Some of the concepts underlying the code are either problematic or have become obsolete
  • there are many new offences, which have to be properly defined and incorporated in the code
  • Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced
  • In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then

Specific cases or problems:

  1. Sedition law, inserted in 1898: It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Learn more about sedition law here
  2. Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
  3. Criminal conspiracy: It can be invoked merely when two people agree to commit an offence without any overt act following the agreement.
    It was added in 1913 by the colonial masters to deal with political conspiracies.
    Kehar Singh etc were convicted and sentenced to death under the offence of conspiracy ,, though none of them participated in the actual crime or were present at the scene of the crime.
  4. Section 149, Unlawful assembly: The principle of constructive liability under this law is pushed to unduly harsh lengths.
    Mere membership of the assembly without any participation in the actual crime is sufficient for punishment.
    Several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime.
  5. The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
  6. Sexual offences under the code reveal patriarchal values and Victorian morality.
  7. Section 377:  Unnatural sexual offences (LGBT right). Want to know about argument of Delhi high court in decriminalizing homosexuality, click here to read about Naz Foundation case

 

Contrarian view point of Justice Hegde

We should not repeal something just because it’s 150 years old.

On Sedition: He favours the sedition law as some restrictions are needed to stop people from abusing and talking against the country. “I believe in sedition law. I am a patriot. Any patriot cannot go on abusing the country. There are certain parameters.” He points to distinction b/w criticizing the person (prime minister), policies, system v/s abusing the state

On IPC:  We can not just scrap Indian Penal Code because somebody is involved in a crime (and wants it to be scrapped)

We can not just ape west. Ground realities in India and west are very different and they demand different levels of freedom of expression and religious freedom.

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