Why in news?
=>In a landmark judgment, a five-judge Constitution Bench of the Supreme Court decriminalised homosexuality, with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender, Queer) to forgive history for subjecting them to “brutal” suppression.
=>The Bench, led by Chief Justice of India Dipak Misra, unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional.
=>The court, however, held that the Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377.
=>Section 377 discriminated against a minority based solely on their sexual orientation. It violated the right of the LGBTQ community to “equal citizenship and equal protection of laws.”
VThe court held that bodily autonomy was individualistic. Choice of a partner was part of the fundamental right to privacy. The court set aside its 2013 judgment in the Suresh Koushal case.
Opinions of the Bench:
=>In four concurring opinions, the Constitution Bench declared the 156-year-old “tyranny” of Section 377 “irrational, indefensible and manifestly arbitrary.” Section 377 thus far punished homosexuality with 10 years of imprisonment.
=>The prayer for forgiveness came from Justice Indu Malhotra, the lone woman judge on the Constitution Bench.
=>Justice D.Y. Chandrachud called Section 377 “Macaulay’s legacy,” which continued for 68 years despite a liberal Constitution because of the manifest lethargy of the lawmakers. He said Section 377 shackled the human instinct to love. It had been a reason for much tragedy and anguish.
Homosexulaity laws worldwide:
=>With the Supreme Court decriminalizing homosexuality, India joins 25 other countries where homosexuality is legal. However, 72 countries and territories worldwide still continue to criminalise same-sex relationships, including 45 in which such relationships between women are outlawed.
=>According to a recent report of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), there are eight countries in which homosexuality can result in a death penalty, and dozens more in which homosexual acts can result in a prison sentence.
VSome of the countries where gay sex has been legalised are: Argentina (2010), Greenland (2015), South Africa (2006), Australia (2017), Iceland (2010), Spain (2005), Belgium (2003), Ireland (2015), United States (2015), Brazil (2013), Luxembourg (2014), Sweden (2009) and Canada (2005).
=>Indian equal rights activists have undertaken a long and arduous journey to decriminalise same sex relationships. They had tasted their first victory when the Delhi High Court in July 2009 decriminalised homosexuality among consenting adults.
=>However, in December 2012 the Supreme Court, quashing the High Court order, held that the order was legally unsustainable.
=>In 2015, the Lok Sabha voted against the introduction of a private member’s Bill to decriminalise homosexuality, proposed by Congress MP Shashi Tharoor.
=>Soon after a group of well known LGBT rights activists, N S Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur approached the SC which agreed to reconsider the issue.
=>The petition 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”.
=>In a ray of hope for the community, in August 2017, the apex court upheld the Right to Privacy, stating that “sexual orientation is an essential attribute of privacy”.
=>In recent verdict the bench, struck down part of Section 377 of the IPC as being violative of the right to equality and the right to live with dignit
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