Muslims lack rationale to oppose decriminalization of Homosexuality (original) (raw)
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LGBT RIGHTS AND DECRIMINALIZATION OF SECTION 377
LEXKHOJ INTERNATIONAL JOURNAL OF CRIMINAL LAW ISSN 2456-2297, 2017
Our Society is formed with vibrant traditions and customs which are foundational pillars. India, a country of cultural values cannot afford to fall into western ways. But since growing economy and people getting more and more aware, our country finally has to step out and walk with the rest of the world by confirming LGBT rights. Modernization has made life practical and has led to casting off our old morals and values. The occasion has come for all of us to realize and accept that we have to shed our fence sitting attitude and come up with provisions, which are just fair and reasonable to tackle these fresh avenues efficiently. Marriage is considered as a sacrament in our country and our constitution provides for right to live life happily, therefore if two people of same sex want to be together and that is what makes them happy then nobody should get authority to rebuke or punish them just on the basis of their sexual orientation. In India public discussion of homosexuality is been inhibited in any form and it is a taboo too. The British enacted section 377 of the Indian Penal code in 1860, which was meant to criminalize “sexual offences against the order of nature” but the order of nature has not been defined anywhere. Though over the years the judicial pronouncements has extended the application of this section to all kinds of sexual expressions which are generally possible between two male persons. Homosexuality in India stands criminalized because of a mid 19th century colonial law. Laws cannot be stagnant, as with passing time there is a need to sync with these new issues cropping up. The taboos of inhibiting these issues and not discussing them are no solution. It’s time to come out of our closets and accept that they are not a “hoax” rather take a step forward towards protecting our basic human rights. Moreover the criminalization of homosexual conduct is unreasonable and arbitrary, there should be just and reasonable nexus between the classification and the object to be achieved by legislation.
GLC Contemporary Law Review, 2017
The essence of liberty as sewed in the organic text of the Constitution of India seems to be faded by virtue of many fatal statutory blows being imposed upon the sexual minorities (specifically discussing about the homosexuals) within the country trampling upon their constitutional and human rights which are nevertheless foundational requisites to preserve and maintain, in real sense, one's life and fashion. The concept of individual freedom embodied in Constitution is not being allowed to realize in the manner as it was intended to be by way of right to have choice within the permissible walls of the freedom but the reality is that even today, in a democratic republic, people are not being allowed to live in the manner they want to live because the social acceptance more than the human rights is being given predilection. Many reasons are assigned for the deprivation of their rights by both, law as well as society, but what is to be considered and scrutinized is that whether the rights to be enjoyed by others are subject to the social and unreasonable legal acceptability. Adhering to this background, this paper is inclined towards the critical examination of S. 377 Indian Penal Code, 1960 (hereinafter as IPC) with a view to come with the reasons of its insertion in the statute book and its applicability to homosexuals. It also depicts as to how the social acceptance is prevailing over the rights of other human beings; this paper finally delineates the present-day scenario of the prevalence of this evil legislation which is trampling upon the human & constitutional rights in the form of statutory whiplashing.
Section 377 A legal & political outlook of India
RUNAS. Journal of Education and Culture, 2021
In India, homosexual intercourse is legal now, but the legalization battle was not so easy; many obstacles were there. In 1860, Section 377 was introduced in the constitution by the British Government which declared homosexual intercourse illegal. As a result, the law considers the individuals of the LGBT community criminal. So, for gay rights, many NGOs and gay social activists have protested 377 repeatedly. They through the legal path achieved success by legalizing adult homosexuality on September 6, 2018. This theoretical case study focuses on the elaborative discussion on the pathetic social status of homosexuals from 1991 to 2018 due to article 377 which makes it clear why the read down of article 377 is needed for the sake of the Right to Privacy given by the Constitution of India.
The journey of the LGBT- lesbian, gay, bisexual and trans gendered community, in India has come a long way. This was a movement for the basic rights of the community which has long struggled to be accepted by the society and the law. Our society has long forced us to believe that the only acceptable form of a relationship is heterosexual marriages. The paper broadly discusses the history and evolution of the rights of LGBT community in India. The objective of our study is to understand the extent of acceptance the LGBT community has received, post the decriminalization of Section 377. It also aims to explore the hidden facts of section 377 and its implications.
Pruning of Section 377, Indian Penal Code, 1860 and Changed Dynamics of Morality in Indian Society
Humanities & Social Sciences Reviews, 2020
Purpose: The research paper has been written in order to analyze the impact of reading down the notorious section of Indian Penal Code, 1860 which being Section 377 which penalized every sexual act other than a heterosexual union even if consensual in the judgment given by the Supreme Court of India in Navjot Singh v. Union of India on the society of India. This paper aims to see its impact on the morality of the Indian community on the known definitions and working of the morality in the social and the legal system. Methodology: In this work classical method of research has been followed which being doctrinal research also, a comparative analysis between the legal text of Section 377 of Indian Penal Code, 1860 and the judgments announced by the Supreme court of India has been undertaken with the proportional qualitative analysis done with moral set up of Indian Society. Main Findings: The analysis conducted on law and social structure of Indian Society by the researchers point out ...
Section 377: Whose Concerns Does the Judgment Address?
Economic & Political Weekly, 2018
The Supreme Court’s recent judgment reading down Section 377 of the Indian Penal Code is a landmark on many counts. But while we celebrate the judgment, it is important to remember that Section 377 meant different things to different groups of queer people. While for some it was the symbolic harm of their desire being designated as “unnatural,” for others it had a material significance in their everyday negotiations with harassment and violence in public spaces.
LGBT BEYOND RELIGION: THE BATTLE BETWEEN LEGAL VS MORAL
It has been a long battle for lesbian, gay, bisexual and transgender (LGBT). On the 2 nd of July, 2009, Delhi High Court decriminalised Sec 377 and legalised consensual sex between adults of same sex. But the judgement of the Delhi High Court was reversed by the Supreme Court of India on the 11 th December, 2013, stating that it was for the Parliament to amend law. Over and above, the Supreme Court rejected petitions seeking review of its December 11, 2013 ruling. Exactly two years after refusing to review its judgement upholding the validity of Section 377, which criminalised gay sex, the Supreme Court on the 4 th of February, 2016, opened a last window of hope for the LGBP community by referring to a five-judge constitution bench curative petitions seeking to legalise consensual sex between adults of the same sex. On the 4 th February, 2016, in the packed chief justice's court, a three-judge bench of CJI T.S. Thakur and Justices A.R. Dave and J.S. Khehar took up the curative petitions for preliminary hearing with many members of the LGBT community anxiously looking to the three judges for a ray of hope. The judgement of the Apex court gave the LGBT community a moral boost that they wanted at this point of juncture constituting five-judge constitution bench which would decide whether to entertain the curative petitions considered on a much narrower compass than a writ petition or a PIL. Advocate Anand Grover, appearing for Naz Foundation, had hardly opened his argument when Kapil Sibal, appearing for the mother of an LGBT person, gave an emotive cloak to the intensely debated issue said: " The most precious right to privacy linked to right to life is sexual activity. If any provision of law restrains such precious right to privacy even when the sexual relationship is consensual and happens within the four walls of the persons' homes, then it must be termed unconstitutional ". For the LGBT community the road ahead is rough and tough despite the landmark decision referring to a five-judge bench, a bunch of curative petitions seeking a fresh view on the SC's December 2003 judgment making gay sex a punishable offence under Section 377 of IPC. The test lies ahead is neither dependent on the merits of the LGBT community's demand for legalising right to private sexual life, intrinsic to right to life, nor on the popular opinion swinging in their favour. The crux of the matter is the narrow 'curative' jurisdiction created by the Supreme Court in its landmark 2002 judgment in Rupa Ashok Hurra case even after the dismissal of a petitioner's plea for review of a Supreme Court judgment. Review petitions are taken up in chamber by the same judges who had heard the case in open court. No advocate from either side is permitted to give their assistance. Dismissal of review petitions are routine and rarely has the apex court reversed its judgement of a review petition.
Impact of the Decriminalization of Homosexuality in Delhi: An Empirical Study
On July 2, 2009, the Delhi High Court read down Chapter XVI, Section 377 of the Indian Penal Code. Prior to the Court’s ruling, Section 377 criminalized sexual activity “against the order of nature,”[3] and served primarily as a vehicle for criminal sanction of male homosexual activity. The 150 year old law, which could impose as harsh a penalty as life imprisonment for violations, had been challenged by public interest litigation for a decade. In its historic judgment, the Delhi High Court found that the provision violated Article 14 and 21 of the Indian Constitution, which provides for the equality of all Indian citizens and the right to live with dignity. The reading down of Section 377 by the Delhi High Court is a pivotal moment in Indian history. Submissions made in the judgment as well as other studies have shown that anti- homosexuality laws largely impact the LGBT community in two ways: (i) anti- sodomy laws affect the relationship of sexual minorities with law enforcement agencies, leading to differential treatment; and (ii) these laws directly (and adversely) affect individual notions of self-esteem, self-worth and play a major role in social and familial acceptance and respect. Thus, the Centre for Health Law, Ethics and Technology (CHLET) at Jindal Global Law School undertook an empirical study to assess the impact of the judgment on the queer community in Delhi and to especially evaluate (i) whether, after decriminalization, members of sexual minorities have felt any difference in the treatment they receive from law enforcement officials, and (ii) whether they believe that they have achieved a greater level of respect and acceptance, from society as well as from their own families. The research conducted for this study consists mostly of personal interviews with members of the LGBT community. This impact assessment is the first of its kind in India and, apart from providing valuable first-hand accounts of LGBT life pre- and post-decriminalization of homosexuality. Researchers interacted with individuals belonging to different sexual minorities who described their lives before and after July 2, 2009. The findings of the interviews are consistent with similar studies in other countries, such as South Africa, the United States, Canada, and Australia. These studies show that decriminalization consistently leads to a rise in the level of social acceptance and, more importantly, self-acceptance of sexual minorities. The findings of this report clearly show that the Delhi High Court judgment has positively impacted the LGBT community and has improved the quality of life of sexual minorities. However, greater efforts must be made, and strategies must be formulated in order to truly integrate the LGBT community into Indian society, eliminate stigma and discrimination, and award them the same opportunities as those available to other citizens.