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LGBT Rights & IPC Section 377

edited December 2013 in Current Affairs
With the recent ruling from SC setting aside the 2009 Delhi High Court ruling decriminalising consensual homosexual activity within its jurisdiction, the problems faced by LGBT community has come forth once again. It calls for wide ranged discussion ranging from India's history, culture and society to our current legal and law enforcement problems.

What is forum's take on the verdict and the issue otherwise?
Sharpen your axe, before cutting down the tree...
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Comments

  • Not a single 'guy' has been prosecuted since it was 'criminalised' in 1860.
    If you 'do something' in private,how an inspector will able to know it and prosecute you ?
    And if they want these rights to 'do' in public ,those are anyway prohibited under article 19(2) on grounds of decency or morality even for hetrosexuals.
    Hold your head high, and your middle finger higher _|_
  • It's not about getting caught or not. But, how can SC can say that a consensual act done in privacy which does not cause any harm to any individual or society is a crime.
  • It's not about getting caught or not. But, how can SC can say that a consensual act done in privacy which does not cause any harm to any individual or society is a crime.
    Why is everyone blaming the SC that it passed a wrong order ? Someone who has better understanding of the law will not blame the SC but the parliament. SC merely interpreted the law and gave an order which according to the law was correct. SC is not a council of some sovereign oligarchs that it has the power of unilaterally amending article 377 of IPC and give a populist order.
    |If you tremble with indignation at every injustice, then you are a comrade of mine|| ||Upsc wars veteran|
  • @Shashank_Patir

    Are you basically saying that all the consensual acts done in private should not be considered as crime ??
    So it means if prostitution is done with consensus and in private which it usually be, then it should also be considered legal??

    SC has not declared anything crime by itself.. It just interpret section 377 which says "unnatural act" is considered as crime...

    The point is that as long as this section hold valid... yes these are crimes...

    So either we should repeal this section by parliament or the SC could declared it unconstitutional ..

    Now the debate should based on why SC has not declared it ultra vires as the High Court did on the basis of article 14,15,21 ?

    SC has the power of Judicial review so why SC had not used this power in this case and put the ball in the court of parliament??
    “If you want to live a happy life, tie it to a goal, not to people or objects.”
    ―Albert Einstein
  • edited December 2013
    This is a debate of morality, be it 377IPC or any other dated rule. I feel, we need to draw a line somewhere on the issue of delineating morality. How moral is it to impose your own morals every one else? How moral is it to expect everyone to be just like you. This is just another form of ethnocentrism.

    Privacy cannot be a criteria for judging criminality. Acts must be judged based on how harmful they are to the individual or the society. I, honestly, cannot see homosexuality as being harmful to the society at large. It has existed in India since time immemorial. There is a higher risk of AIDS in MSM, but that certainly doesn't justify a "criminal" tag. Even major professional mental health bodies do not consider it as an illness any more.

    The SC has pushed the ball in to the the court of the legislature. I believe it should be decriminalized (even though no one has ever been jailed for life for homosexuality).
    Prelims : 2/5; Mains : 0/2; Interview : 0; Remainder : 1+1 (Tired but not; Retired) / Medical Science / Kolkata / Nihilist extraordinaire | Thanks a lot...
  • edited December 2013
    I feel that somewhere Article 377 is connected with the refusal to define or adequately penalize male sexual abuse in our country. If homosexuality exists,define it,then legislate and say that ok,this is legal,which will pave the way to opening up about illegal practices i.e. abuse. I dealt with a most horrific case in my internship and I don't understand why when we are all talking so much about sexual offences against women no one is talking about male abuse.
    And while social norms will remain as they are,either the Parliament or the SC should have the courage to stand up and define what is legal.Society decides morality,not the legislature or the judiciary.They should perform the roles they have.
    The horde sees the fish. Arjuna sees the eye.
    I see the possibility of fish pakoras ;)
    fledgling IRS (C&CE)
  • @Shashank_Patir

    Are you basically saying that all the consensual acts done in private should not be considered as crime ??
    So it means if prostitution is done with consensus and in private which it usually be, then it should also be considered legal??
    Prostitution is perfectly legal in India.
    http://www.gangothri.org/?q=node/9
    http://en.wikipedia.org/wiki/Prostitution_in_India
  • This whole issue has been judged by court wrt acts in order of nature or against order of nature .

    How did Court came to this conclusion that only Consensual acts between man and a woman is natural and rest is unnatural !!No scientific logic or reasoning there i guess.

    Narrow - Minded views should not dictate judgements of SC.Also these so called unnatural acts are not posing a threat to our society and in no way harming anyone in any sort of way.

    So why take such a regressive step and backtrack on what High Court considered legal by scrapping Sec 377 of IPC.
    This judgement violates Art 14,21 of constitution.It verily qualifies as a case of judicial deference imo.
    The fault , dear Brutus, is not in our stars, / But in ourselves, that we are underlings .
  • The gravity of situation lies in its impact on the crippling effect it will have on health programmes in mission mode such as prevention and management of HIV/AIDS in vulnerable groups such as lgbt community as they will not come to light voluntarily regarding their sexual orientation .
    This ruling will also present India as an illebral democracy in international forum like the UNHRC which has already conveyed its displeasure at this archaic law in India.
  • @RAJANAKIN
    I agree even Deptt of Aids control in india has voiced its concern regarding the discrimination that LGBT would now face and it will hinder them to come out in open and seek help from govt programmes.
    As MSM is regarded second most vulnerable category after drug injecting users wrt AIDS so it will definetly offbalance 4th phase of Aids control programme .
    The fault , dear Brutus, is not in our stars, / But in ourselves, that we are underlings .
  • yeah detrimental to our MDG goals too
  • #Roo
    It's not about getting caught or not. But, how can SC can say that a consensual act done in privacy which does not cause any harm to any individual or society is a crime.
    Why is everyone blaming the SC that it passed a wrong order ? Someone who has better understanding of the law will not blame the SC but the parliament. SC merely interpreted the law and gave an order which according to the law was correct. SC is not a council of some sovereign oligarchs that it has the power of unilaterally amending article 377 of IPC and give a populist order.
    Sorry bro, I am not well with the laws (Naive, I am in 1st sem of my degree course), but I just feel that SC could have made gay sex legal and then direct the legislature to make the required amendments. Previously, Delhi HC has done that. And, in the beacon verdict, SC has asked the government to make amendments in the Motor vehicles act. So, not why in this case. :-S
  • @Shashank_Patir

    Are you basically saying that all the consensual acts done in private should not be considered as crime ??
    So it means if prostitution is done with consensus and in private which it usually be, then it should also be considered legal??

    SC has not declared anything crime by itself.. It just interpret section 377 which says "unnatural act" is considered as crime...

    The point is that as long as this section hold valid... yes these are crimes...

    So either we should repeal this section by parliament or the SC could declared it unconstitutional ..

    Now the debate should based on why SC has not declared it ultra vires as the High Court did on the basis of article 14,15,21 ?

    SC has the power of Judicial review so why SC had not used this power in this case and put the ball in the court of parliament??
    But, I don't think homosexuality is unnatural. As I remember, homosexuality is seen in about 450 species. So, I think it's quite natural.
  • edited December 2013
    #Roo
    It's not about getting caught or not. But, how can SC can say that a consensual act done in privacy which does not cause any harm to any individual or society is a crime.
    Why is everyone blaming the SC that it passed a wrong order ? Someone who has better understanding of the law will not blame the SC but the parliament. SC merely interpreted the law and gave an order which according to the law was correct. SC is not a council of some sovereign oligarchs that it has the power of unilaterally amending article 377 of IPC and give a populist order.
    Sorry bro, I am not well with the laws (Naive, I am in 1st sem of my degree course), but I just feel that SC could have made gay sex legal and then direct the legislature to make the required amendments. Previously, Delhi HC has done that. And, in the beacon verdict, SC has asked the government to make amendments in the Motor vehicles act. So, not why in this case. :-S
    I can understand your confusion as to why SC did not dictate the parliament in this 377 case to amend the penal code whereas it asked the parliament to amend central motor vehicles rules regarding red beacon issue. The reason being, SC doesn't normally dictate the parliament when matters of morality, culture, values, customs, heritage and people's life styles and other societal issues are concerned. SC intervenes only when the law curbs the right to livelihood and in matters where quality of life is diminished. Although u can argue that the quality of life of certain section of the society gets diminished in the instant case but still when such sensitive social issues are involved SC wants parliament to amend the 377 section on its own initiative and wisdom. SC doesn't represent the will of the people and the judges are no people's representatives to amend the laws themselves..
    |If you tremble with indignation at every injustice, then you are a comrade of mine|| ||Upsc wars veteran|
  • @Rookie- Thanks for adding. But, do you think that SC is so bounded by that section of IPC. And, IMO the arguments given by the SC is unlawful. Verdict talked about the miniscule proportion of LGBT community and homosexuality being unnatural, which I quite don't agree.
  • @Shashank_Patir dude u are still not getting it. If u read section 377 it mentions homosexual activity as an offence and its an unnatural act. Thats it! When the law clearly says it is unnatural it is considerd unnatural whether me u or SC judges agree with it or not. SC judges dont sit in judgement concerning what is write or wrong. They simply interprets the law and pass an order in accordance with it even though a law itself may be wrong! Me u and the SC judges themselves know that 377 violates fundamental rights but nothing can be done by us... only parliament can repeal or amend it
    |If you tremble with indignation at every injustice, then you are a comrade of mine|| ||Upsc wars veteran|
  • @Rookie- I completely understand bro. But still if many educated and high profile lawyers and lordships expected a 'different' judgement, there must be a reason behind it. Just curiously asking that if terming gay sex is completely constitutionally unsustainable and courts are only interpreters of law, how could Delhi HC in 2009had made gay sex legal. I am not contradicting you, but just wanted to know.
  • Obviously SC had come in conflict with Procedure established by law & Due process of law . Former had won this time . No need to panic for LGBT for long time , nevertheless of illiterate religious bigots of opposition party's statement promoting SC verdict .

    As earlier said , SC had just interpreted . Now its high time Parliament take proper amendments to counter the verdict and bring Citizens in cheer . :)
    2017--> 8th attempt
  • edited December 2013
    @Shashank_Patir dude have u heard anything regarding judicial activism ? The 2009 order of Delhi HC falls into that category where due process of law was followed which in itself contradicts the constitution and the doctrine of separation of powers! For more info search web and read some books or request @vibin to clarify your doubts!! But be clear on this, legally SC did the right thing what it was supposed to do! :)
    |If you tremble with indignation at every injustice, then you are a comrade of mine|| ||Upsc wars veteran|
  • @Rookie- Sorry bro, as said I don't consider myself qualified enough. But, just wanted to know. Thanks for clarifying. Hope, you didn't mind. :)
  • @Shashank_Patir absolutely no problem Bro.. :) btw i like you taking interest in current affairs even when you are in 1st sem of graduation! Keep on doing so and when you come the last sem suddenly u feel the cse syllabus to become more easier to u than your fellow competitors..
    ATB.
    |If you tremble with indignation at every injustice, then you are a comrade of mine|| ||Upsc wars veteran|
  • @Rookie- I am a follower of this forum. And, I can see that all are very intelligent and indeed very helpful. :P
  • @ VIBIN SPOT ON MAN thats wat happened procedure established by law won over due process of law even through fundamental right to expression was compromised
  • @rookie
    @Vibin
    Just a thought !!

    If High Court could decriminalse it under judicial activism what stopped SC from doing so or in such cases SC deliberately leaves the ball in parliament's court?
    The fault , dear Brutus, is not in our stars, / But in ourselves, that we are underlings .
  • edited December 2013
    @rookie
    You are absolutely correct in saying that SC's judgment was legally valid. The personal opinion of the SC judge doesn't matter w.r.t law or else it constitutes activism. There’s a section even among LGBT backers who say that they should've tried to bring change through legislature instead of courts. In view of this, SC decision - although looks regressive - is correct.

    However, to say that "SC judges know it violates FRs and still can't do anything" would be wrong. SC can, as you're aware, strike down a law (even if decade old) if it believes that the law violates FR. Surely they didn't think that the above law violates FR of written Indian constitution and therefore left it for legislature to effect a change, if required (they might want these rights as a part of FR itself but that is a different point).

    I believe you said that probably to explain activism in an easy way but sounded factually incorrect to me. Let me know if you disagree.
  • @rookie
    @Vibin
    Just a thought !!

    If High Court could decriminalse it under judicial activism what stopped SC from doing so or in such cases SC deliberately leaves the ball in parliament's court?
    Nothing. They just didn't follow the path of activism, as it involved morality - @rookie has already pointed out.
  • @rookie, @vibin and others,
    PLEASE stop misinforming others about the "legality" of this judgement. I'd love to stay and chat but I am presently laptop-less so this is being typed in annoyed haste from a phone- but for the love of IAS, please stop saying things like "the SC is legally right". The very mandate of the SC is to test legislations against the constitution and protect the rights guaranteed therein.

    This is an excellent analysis of the judgement: m.outlookindia.com/article.aspx/?288823&maneref=http%3A%2F%2Ft.co%2F6Zdwsb8Hma
    "If you don't stand for something, you will fall for anything."
  • @rookie, @vibin and others,
    PLEASE stop misinforming others about the "legality" of this judgement. I'd love to stay and chat but I am presently laptop-less so this is being typed in annoyed haste from a phone- but for the love of IAS, please stop saying things like "the SC is legally right". The very mandate of the SC is to test legislations against the constitution and protect the rights guaranteed therein.

    This is an excellent analysis of the judgement: m.outlookindia.com/article.aspx/?288823&maneref=http%3A%2F%2Ft.co%2F6Zdwsb8Hma
    THAT, is a very very very annoyed lawyer right there :P
    Pehle vey aap par dhyan nahi denge, Fir aap par hasenge, Fir aapse ladenge, Aur tab aapki jeet hogi.
  • edited December 2013
    @rookie, @vibin and others,
    PLEASE stop misinforming others about the "legality" of this judgement. I'd love to stay and chat but I am presently laptop-less so this is being typed in annoyed haste from a phone- but for the love of IAS, please stop saying things like "the SC is legally right". The very mandate of the SC is to test legislations against the constitution and protect the rights guaranteed therein.

    This is an excellent analysis of the judgement: m.outlookindia.com/article.aspx/?288823&maneref=http%3A%2F%2Ft.co%2F6Zdwsb8Hma
    For the love of IAS ?! Did u even read the comments posted above and in what context they were made ?

    Ok if it makes u happy then take this - " SC's judgment is illegal and the judges are no more than a bunch of fools who have no inkling of what is written in constitution or the laws and hence have passed such moronic order" !
    |If you tremble with indignation at every injustice, then you are a comrade of mine|| ||Upsc wars veteran|
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