Ruling on Section 377: SC De-Criminalized Homosexuality

Ruling on Section 377: SC De-Criminalized Homosexuality

Updated on 24 April, 2019

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The recent SC judgment set aside section 377 which criminalized homosexuality. Section 377 of the IPC criminalized sexual activities of the LGBTQA+ community.  

What is Section 377?

  • The section 377 of the IPC states: Well, “Whoever voluntarily has the carnal intercourse against the order of the nature with any man’s, woman’s or animal’s, will be punished with the imprisonment for life, or with the imprisonment of either description for a term which may extend to ten years, and also shall bailable to fine.”
  Observations by various justices:
  1. CJI Dipak Misra:
    • Well, the “Section 377 is irrational, indefensible and also manifestly arbitrary,”
    • Quoted German thinker Johann Wolfgang Von Goethe, “I am what I am so taking me as I am”.
  2. Justice Indu Malhotra:
    • Well, the “LGBT people have the rights to live unshackled from the shadow” and that “history owes an apology to the community” for the years of the stigma imposed on them.
  Arguments Against Decriminalization
  • Many religions consider homosexuality a sin, conduct against the order of nature, and hold that an individual falling in this category be considered a criminal.
  • In the context of religion and morality, homosexuality is prohibited by Islam.
  Arguments For Decriminalization
  • The constitutional morality makes it mandatory for the state to provide equality to all.
  • Section 377 abridges both human dignity as well as the fundamental right to privacy and also the choice of the citizenry.
  • Moreover, it is the right of every individual which including the LGBT (lesbian, gay, bisexual, transgender) to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.
  • In fact, no one can be discriminated against only on the grounds of their sexual orientation and also called for the constitutional protection to even sexual minorities.
  Problems faced by the LGBT Community
  • Such laws (section. 377) have led to abuses against lesbian, gay, bisexual and transgender people including arbitrary arrests, violence, bullying in schools, denial of access to health and harassment at work.
  • Depression is high amongst members of the LGBT community and one of the primary reasons for it is the failure to lead a normal life.
  • In fact, the jobs and, in turn, financial security is denied to people on the basis of their sexual orientation.
  • Constant police harassment of the gay community.
  Constitutional Safeguards
  • Well, the ideals of individual autonomy and also liberty, equality for all, recognition of identity with dignity and also the privacy of human beings constitute the cardinal four corners of our Constitutions.
  • Right to Privacy enshrined under Article 21 upholds that if a person cannot enjoy his privacy then it hampers his right to a dignified life.
  Challenges
  • Well, homosexuality is against the majoritarian view on sexual orientation, and decriminalizing Section 377 might lead to widespread criticisms across the countries.
  • And, the decriminalization of Section 377 will open new debates on marriage, adoption, inheritance and also other such rights.
  • Decriminalizing Section 377 does not ensure a halt in discrimination against the LGBT community.
  • The other challenge for LGBT members will be with respect to acceptance in jobs and also in family gatherings.
  Question:
  • Discuss the problems which are faced by LGBT Communities. Also, explain the implications of recent  judgment which decriminalized Section 377 of IPC (250 Words)
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