Section 377 struck down

THE CASE: A five-judge Constitution Bench of the Supreme Court will pronounce on September 6 the judgment on the constitutionality of Section 377 of the Indian Penal Code (IPC), a colonial era provision which criminalises private consensual sexual acts between same sex adults.

THE JUDGES: The Bench is led by Chief Justice of India Dipak Misra and comprises Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

4 judges of the Supreme Court out of 5 have given written judgements in the gay right case

THE PETITIONERS

Gautam Yadav: He is a Delhi-based programme officer with the NGO Humsafar Trust. Aged 27, his petition talks about how he faced bullying in school, which forced him to drop out at 15.

Ritu Dalmia: She is a Delhi-based chef who identifies as lesbian and is the owner of the restaurant chain, Diva. She filed the petition after the Supreme Court reversed the Delhi High Court's judgment on Section 377, reinstating the law that criminalised consensual same-sex relations between adults.

Keshav Suri: He is an executive director of The Lalit Suri Hospitality group, which owns The Lalit hotel. He filed a petition earlier this year. Suri said the shooting in Pulse in Orlando (a nightclub in Florida where a June 2016 shooting left 49 people dead, many of whom were gay) was his 'personal and professional awakening'.

Urvi: She is a research intern at the Indian Institute of Technology in Bombay and belongs to Anantapur in Andhra Pradesh. Urvi, who uses a different name in the petition, is a transgender woman and has struggled with poverty since childhood.

Arif Jafar: He is founder of the NGO Bharosa Trust in Lucknow. He was arrested under Section 377 in July 2001 and was in jail for 47 days. During the imprisonment, he says he was abused, tortured and humiliated. His case still drags on.

Akkai Padmashali: He is a transgender rights activist and filed a petition in the Supreme Court against Section 377 in 2016 along with two other transgender women, saying their right to privacy was being curbed under the law.

THE RESPONDENTS:

• ASG Tushar Mehta for Central government
• Manoj George for Apostolic Alliance of Churches and Utkal Christian Council
[Original Respondents in Curative Petition]
• KS Radhakrishnan for Trust God Ministries [Original Respondents in Curative Petition]

THE INTERVENERS:

• Shyam Divan for Voices Against 377
• CU Singh for Alok Sarin
• Ashok Desai
• Krishnan Venugopal for academicians from Central Universities based in Delhi

ARGUMENTS OF THE PETITIONERS:

Sexual orientation is not a matter of choice but it is something innate and people are born with it.

Section 377 uses the word 'order of nature'. This 'order' is the Victorian morals of 1860s. As society changes, values change; what is moral 160 years ago might not be moral today.

Section 377 is arbitrary and unconstitutional. It violates Articles 15, 19 and 21 of the Constitution.

It violates Article 15 because the discrimination revolves around the sex of the partner.

CENTRE'S POSITION:

The central government took a neutral stance, leaving the decision to the 'wisdom of the court' as long as it applies to 'consensual acts of adults in private'. He requested the courts to limit themselves to the constitutionality of section 377.

TIMELINE OF THE CASE:

1861: Introduction of Section 377: Section 377 was introduced by British India, modelled on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was brought into effect in 1860. It defined ‘buggery' as an unnatural sexual act against the will of God and man, thus, criminalising anal penetration, bestiality and homosexuality, in a broader sense.

2001: Naz Foundation files petition against Section 377 in Delhi High Court: Over the years, Section 377 had sparked numerous controversies with activists challenging it in various ways. In 2001, Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court. They filed a lawsuit to allow homosexual relations between consenting adults.

2003: Delhi HC dismisses Naz Foundation plea: The Delhi High Court dismissed the Naz Foundation petition, saying the body had no standing in the matter. The Naz Foundation appealed the dismissal to the Supreme Court in 2006, which instructed the Delhi High Court to reconsider the case.

2009: Delhi HC decriminalises homosexuality: In a landmark decision, the Delhi High Court decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.

2012: Supreme Court overturns the HC order: After HC's judgment, various appeals were made to the Supreme Court, challenging the High Court's authority to change a law. In December 2013, the Supreme Court overturned the HC's decision. The Supreme Court sets aside the 2009 verdict. It further said that it was the duty of parliament to decide on scrapping laws. Global Day of Rage demonstrations was organised in over 30 cities to protest against Section 377.

2015: Shashi Tharoor's Private Member Bill: After the Narendra Modi-led government was sworn-in in 2014, it said it would take a decision regarding Section 377 only after the SC judgment. In a written reply to Lok Sabha, Minister of State (Home) Kiren Rijiju had said, 'The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgment by the Supreme Court.' A year later, when Shashi Tharoor introduced a private member's Bill to decriminalise homosexuality, the Lok Sabha voted against it.

2016: Five petitioners move SC over Section 377: Five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. The petition, filed by well-known LGBTQ activists, claimed their 'rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.'

2018: SC begins hearing on Section 377: A five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, begins hearing petitions challenging Section 377.

377 STRUCK DOWN

WHAT THIS MEANS

It has been a long and stormy fight for justice for the LGBT community but today, 72 years after independence the rainbow finally shines through for the LGBT community.

Equality has taken over the antiquated idea of morality and criminality that held an entire community back.

Every Indian is FINALLY equal before the law and constitution of India

The Constitution of India has prevailed over the quakery of regression

One of the last pillars of regressive colonial rule has come crumbling down and the Supreme Court of India's word has ensured that has happened

Fundamental rights above bigoted thought, freedom of choice over close mindedness, and THE RESOLVE OF INDIANS TO DEMAND THEIR RIGHTS NO MATTER WHAT IT TAKES, NO MATTER THE STRUGGLE have triumphed over unsubstantiated phony theories propagated by clans of archaic mindsets

'Indian culture' as an excuse and smokescreen to safeguard orthodox mindsets have come down crumbling and the exploitation of the great'Indian Culture' of India has been held to account

This verdict marks India's final step towards breaking the artificial barriers of prejudice, discrimination and archaic ideas to step into the 21st century.

This judgement is not just a moment of celebration for the LGBT community but it is a celebration of the spirit of our constitution that has always stood for equality for all.

The highest courts of the country have shunned stigma and embraced the LGBT community.

Those who tried to create a smokescreen of tradition, morality and culture have been defeated and the real India and the very Indian concept of freedom and fraternity has won.

The Supreme Court has flagged off a new era for India.

An era where there is zero discrimination.

An era where one person's sexuality doesn't affect their dignity.

An era where no person is punished for simply being the way they are.

And an era where no one can dictate to another how they choose to live in a free and independent India.

The CJI announced that there are 4 opinions: One by CJI + Justice Khanwilkar and Rest by the other 4 judges. Interestingly, all four opinions are concurring judgments, as per CJI Dipak Misra.

NO CAN ESCAPE FROM THEIR INDIVIDUALITY: CJI: 'I am what I am. So take me as I am. No one can escape from their individuality'

ONE DEFINES ONESELF: In a unequivocal show of support the CJI said: 'one defines oneself. That is the glorious form of individuality.'

ROSE BY ANY NAME IS STILL SMELLS SWEET: The CJI said:  Shakespeare said a rose by any other name would smell just as sweet'. Clearly pointing to the fact that labels don't define individuals.

CJI CELEBRATES DIVERSITY: The CJI in an open court today declared 'the name is a convenient concept for identification. Sans identity, the name only remains a term' and celebrated diversity.

IDENTITY OF THE INDIVIDUAL MATTERS: The CJI said today emphasis is laid on the identity of an individual. Sustenance if identity is one's right.

FOCUS ON DIGNITY, PRIVACY, IDENTITY: CJI said dignity, protecting one's identity and one's privacy are the important pillars of the constitution' and made it clear that dignity comes above absurd laws imposing criminality.

PRIVACY THE CARDINAL RULE: CJI privacy of human beings constitutes the cardinal rule of our constitution' and is no clearer terms he has effectively said - let the people of the LGBT community be. Don't invade on their privacy.

LIBERATION FOR TRUE DEMOCRATIC SOCIETY: CJI said 'only when every individual is liberated can we call ourselves a true democratic society' AND

FOLLOWED IT UP BY SAYING: 'we have to bid adieu to perceptions and social prejudices'

BIG: CJI - 'LGBTQ community has the same rights as other citizens do'

BIG: CJI: 'Denial of self expression is like death'

The Supreme Court rolled back on it's own 2013 verdict and said 'View taken by SC in Suresh Kumar Koushal impermissible'

BIG: '377 is irrational, indefensible and manifestly arbitrary'

EQUAL RIGHTS FOR LBT: CJI for himself an J. Khanwilkar said:' LGBTQ community possesses equal rights as any other citizen' and overturns Suresh Koushal judgment by saying 'at the core of the concept of identity is self determination'

RIGHT TO LIVE WITH THE DIGNITY: The CJI has said 'right to live with dignity is recognised as a fundamental right internationally' and made it clear that no section 377 can take away the fundamental rights of our LGBT community.

PRIVACY FOR THE LGBTQ: The CJI has said 'after the privacy judgment, right to privacy was made a fundamental right. Existence of Section 377 contradicts that'.

377 AGAINST ARTICLE 14: The CJI has said 'Section 377 contrary to Article 14 of the constitution'

TARGETTED DISCRIMINATION ENDS: THe CJI said 'LGBTQ have been targeted resulting in discrimination'

CJI - SECTION 377 TO THE EXTENT OF CONSENTING SEXUAL ACTS BETWEEN ADULTS TO BE STRUCK DOWN

THE CJI has finally declared 'Any consensual sexual relationship between two consenting adults - homosexuals, heterosexuals or lesbians cannot be said to be unconstitutional' For 68 years, since the Constitution came into effect, homosexuals have been treated as if they weren't a member of our society and there is no place for them in it.

Non-recognition of the third gender in criminal and civil statutes such as marriage, adoption, divorce etc., was declared discriminatory. Even though the judgment promoted equal rights for transgenders on all possible fronts, the Transgender Protection Bill of 2016, failed miserably to abide by it in protecting the rights of the community.

For starters, it defined transgender as "someone who is neither fully male nor fully female". In addition to that, the bill stated that there will be a District Screening Committee, which will determine the authenticity of the supposable sexual orientation of the person in question, and once the screening committee has approved someone, they can be considered a transgender legally.

This process of determining the genuineness of sexuality certainly raised the possibility of the existence of some grounds of rejection, which thereby violate Article 14 (Right to Equality) of the Constitution.

It is truly sad that a community faced such high levels of discrimination and nothing was done about it until now. Discrimination is a germ, which doesn't just pollute the legal aspects of a society, but also puts a blemish on the humanitarianism of the entire nation.

Everyone is born equal and, hence, no human being possesses the right to discriminate against the other on any basis, be it caste, creed, colour or sexuality.

After the remarkable stand taken by the SC bench, it is safe to say that India is making quick progress with time, and this gives hope that the stigma associated with homosexuality will be eradicated too.

The development calls for celebration as it has ushered in an era of equality and inclusivity. This celebration, therefore, must not just include members of the LGBTQ community but all supporters of equality around the world.

The humiliation and vilification of homosexuals must end now.

After the verdict was delivered, Justice Indu Malhotra said that we owe an apology to the entire LGBTQ community for the years of stigma they faced.

While the verdict is about a change in the law books, it is time to make it meaningful by changing the mindsets that are uncomfortable with sexual identities that don't fit into neat brackets.

 

Kushal kumar 
on 28 August 2019
Published in Others
Views : 576
Other Articles by - Kushal kumar
Report Abuse









×

  LAWyersclubindia Menu