Decriminalizing LGBT and repealing or striking of Sec-377

[sivaharimani]

Hi All Members,

Hope you all would have known about the recent issue Decriminalizing Homosexual and LGBT(Lesbian, Gay, Bisexual and Transgendered) rights by repealing or striking the SEC- 377 of IPC. I request the members to give your complete views on this issue and give your suggestions to manage the issue in India(which actually high in moral standers and rich in spritual life practice).

Please comment also on the recent words of Delhi High court on "striking Sec -377(punishes the carnal intercourse that against the natural evolution of human to the higher order and even imprissions for 10 years) and the sec - 377 may violate the Art -21 of Indian Constitution".

I request the members to not to use any harsh words but to handle matured words in this regard as the issue is very sensitive. Thank you all.
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[maverick777]

CONTENTS FROM WIKI:

The movement to repeal Section 377 has been led by the Naz Foundation India Trust, an activist group, which filed a public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults.
In a historic judgement, on 2 Jul 2009, Delhi High Court overturned the 150 year old section, legalising consensual homosexual activities between adults. The essence of the section goes against the fundamental right of human citizens, cited the high court while striking it down. In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.
The two judge bench went on to hold that:

"If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that "discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual."

Any kind of discrimination is antithesis of right to equality, said the court, while allowing plea of gay rights activists for decriminalization of homosexuality.
The court stated that the judgement would hold till Parliament chose to amend the law. However, the judgement keeps intact the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors.
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<SUP>THUS, THE JUDGEMENT CLEARLY DEPARTS AWAY WITH THE AGE OLD CURSE ON THE RIGHT TO EQUALITY AND STATES THAT THE ESSENCE OF EQUALITY IS RESTORED TO ALL THE SECTIONS OF THE SOCIETY WHICH ARE PRIMA FACIE IN ARTICLE 21 OF OUR CONSTITUTION : KUDOS TO THE JUDGEMENT</SUP>

[mishra1411]

The judgement is infact a great victory in the democracy for the Right Of Equality, but one main issue in this respect that needs to be addressed is the Sexual harrassement of children.

Article 377 is basically concerned regarding any kind of intercourse that does not leads to reproduction.

As its been completely legalised, it may lead to increase in the sexual abusemnent of children.

And as such in addition with repealing Article 377, there is also a need of providing a measure against child abuse.

Strict laws have to be formulated to deal with this issue.

[mrunal]

first the Govt. should explain

why punishment for raping a woman only 7 years jail and being gay is worth 10 years?

i don't see any reason to jail gay people for 10 years when others can...
keep an AK-47 @ home and yet remaining out of jail for life on bail,
kill 14 people on drunk driving , kill 2 black bucks in Rajasthan and yet not even remain in jail for a month!

[satish]

Verdict of the Delhi High court is a welcome step and a great victory for the people fighting for gay rights, there is no doubt that this 150 year old article violates fundamental rights and article 14, 15 and 21 of our constitution but the decision of the court is limited to Union territory of NCR and it is yet to be seen that how government of India convince the religious bodies (which are against repealing article 377) before proceeding towards amending article 377.
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[saifnaik]

I was seeing the other day on Fox History and entertainment a show about AIDS, and how the proliferation of gayism was responsible for the proliferation of AIDS. Ours is a country struggling with spiraling cases of HIV-AIDS so even though we should not be arresting and harrasing gays in accordance with 377 but the practice should be desisted and looked down upon.

[satish]

Here i would like to share an article published in India Express about section 377.

Section 377 IPC was enacted in 1860 by British colonial rulers in the heyday of Victorian morality. It punishes inter alia sexual intercourses between same sex persons with life imprisonment or rigorous or simple imprisonment up to 10 years. After 1967, homosexual acts between two consenting adults in private are no longer an offence in England. Homosexuality has been decriminalised in several countries of Asia, Africa and South America.

The US Supreme Court in 2003 ruled in Lawrence vs Texas that criminalisation of homosexuality between consenting adults was unconstitutional because it violated their fundamental rights of liberty and privacy. Courts in other jurisdictions namely, Canada, Australia, South Africa, Fiji and Nepal, as also the European Court of Human Rights in Strasbourg, have invalidated laws criminalising sexual intercourse between same sex adults. Despite the above trend and the 172nd Report of our Law Commission submitted in 2000 favouring abolition of Section 377 this monstrous provision continued to remain on the statute.

Fortunately the Delhi High Court in its recent landmark judgment after a thorough and excellent analysis of the judgments of various courts and the legal and medical literature on the subject has ruled as follows: Section 377 insofar it criminalises consensual sexual acts of adults above 18 years of age in private is violative of the fundamental rights guaranteed by Articles 21 (personal liberty) and Articles 14 and 15 (non-discrimination). The High Court has not struck down Section 377. It has expressly stated that Section 377 will continue to govern non-consensual sex involving minors.

In essence homosexuality has not been legalised, much less advocated or championed. It has been decriminalised with the salutary consequence that the police will not be able to barge into a person’s bedroom and terrorise him or her with arrest and criminal prosecution with all the attendant trauma and stigma unless the extortionate demands of the police are met. It is well known that Section 377 had become an instrument for harassment and blackmail.

The judgment rightly removes the stigma that a gay person is a criminal or an immoral person. If some adults because of their sexual orientation are impelled to express and fulfill their affection with same sex persons in the privacy of their bedrooms without causing any offence or harm to anybody—except self appointed guardians of morality—surely they cannot be treated as criminals, their personal liberty violated nor can they be discriminated against for their alleged ‘unnatural’ acts. Pray, who has the authority to define what is unnatural or against the order of nature? If one subscribes to the regressive notion that the sole aim of sexual intercourse must be for procreation, then an absurd consequence will be that oral sex between husband and wife would be punishable under Section 377. Incidentally oral sex is vividly portrayed in Khajuraho temples.

The legal merits of the judgment may be debated. However, to attack the judgment as an assault on the culture and fabric of Indian society betrays a narrow and sick mentality. And for Heaven’s sake do not bring religion into the matter. What may be regarded as sinful by some religious leaders, is not necessarily a crime. For example, contraception is prohibited by certain religions and considered sinful. But it is a far cry to proscribe that activity as a punishable crime.

The Delhi High Court judgment has liberated persons in the judiciary, and in the fields of law, literature, science and other disciplines from the stigma of criminality and immorality solely because of their sexual orientation. The real merit of the judgment lies in its recognition that intimacies, privacies and autonomies of human life and the right of an individual to make choices, which does not harm or infringe the rights of other persons, cannot be criminalised. The judgment gives effect to the value of inclusiveness and highlights a vital fact that where society can display inclusiveness and understanding, all persons can be assured of a life of dignity and non-discrimination. It is hoped that this progressive and enlightened judgment is accepted by the State.

Soli J. Sorabjee

Source - India Express.

[vedang]

Imagine you are getting probational training for after clearing UPSC. Unfortunately they couldn't provide separate rooms to all. Now you have to share a room with 2 persons and Gay (which you don't know). At night they feel some sensation and rest you can think over.

See this is applicable to all organizations ( even private). A person from private organization doesn't know much about legal procedures. In fact, he tries to avoid legal procedures through corruption or some other way. I have seen some eunuchs forcing the person to become like them.

Amendment of section 377 says that they are decriminalized regarding what they do in the bedroom. But i want to ask Delhi High Court if they are going to do in the bedroom and with mutual consent than who's going to punish them. No one cares what they do in the bedroom. See this black mailing and harassment are all rubbish arguments. All who are harassed under section 377 are not necessarily Homosexual. And those who are harassing can find other ways. If harassment is there than bring reforms to that side.

Every law has pros and cons but i think Delhi HC has seen only one side.

Some persons argue that India has been 127 country to amend the law. But India has remained different country since independence. When India decided not to align with any other countries even then India was different country. But NAM summits has done commendable job during Cold war .

[mrunal]

Imagine you are getting probational training for after clearing UPSC. Unfortunately they couldn't provide separate rooms to all. Now you have to share a room with 2 persons and Gay (which you don't know). At night they feel some sensation and rest you can think over.

man that was really funny but true. read this new IAS officer caught in ?act?, accused of sodomy- Hindustan Times had you posted your post as a new thread then I would have nominated it for awards. I agree with you on following point

i want to ask Delhi High Court if they are going to do in the bedroom and with mutual consent than who's going to punish them. No one cares what they do in the bedroom.

All who are harassed under section 377 are not necessarily Homosexual. And those who are harassing can find other ways. If harassment is there than bring reforms to that side.

true. same way, many women file fake dowry charges against their husbands, so if we go by the logic of harassment , then Dowry Act should be repealed as well. If 377 is gone then how will be a gay raping another gay or old man sodomizing young boys will be punished

A six-year-old mentally challenged boy was sodomised allegedly by one of his neighbour in East Delhi, police said. The incident took place in Karkadooma locality when a neighbour Kapil lured him by offering ice cream and allegedly sodomised him, they said. The boy's parents became concerned when Kapil did not return the boy till 11 p.m. During searches, they found both of them sitting on the bench of Ambedkar Park in a semi-nude condition. A case has been registered against Kapil under section 377 of IPC, police said.

Reference - its nothing new, there are many cases where school boys were lured for toffee and then sodomized and killed. because the normal rape sections don't apply to it. may be then it'd be registered as simple assault case which i think doesn't carry much punishment. 377 needs reform and not abolishment. and more importantly first Govt. should amend the Rape & Dowry laws first. because that's harming the society more than the 377.