Wider Concerns of Sec 377

What is the issue?

On a petition relating to the LGBTQI community, the Supreme Court’s stance seems to be narrow.
It calls for expanding the SC’s considerations to acknowledge the wider concerns of Sec 377.

What is the recent development?

The Supreme Court is hearing a curative petition against one of its 2013 judgment.
The 2013 SC judgment reversed a 2009 judgment of the Delhi High Court.
The Delhi HC judgement made Sec 377 of the Indian Penal Code invalid.
Section 377 criminalises sexual activities “against the order of nature”, including homosexual activities.
This significantly affects India’s LGBTQI community.

What is SC’s stance?

The 2013 SC judgement was one of the lowest moments for human rights in India.
Supreme Court has now been supportive to the LGBTQI rights in its initial observations.
However, it has said that it would concern itself only with the question of the validity of Sec 377.
It would also examine the correctness of the Supreme Court’s 2013 judgment.

What are the concerns?

The Supreme Court’s approach appears to be a limited one.
As, it tries to interpret a broader human rights and justice issue as a matter of pure constitutional validity.
The law is not abstract, and it is important to consider if the law impacts the lived experiences of human beings.
It thus calls for SC to also concern itself with the impact of Sec 377 on the lives of the LGBTQI community.

What is the need?

Failure to use a rights-based approach has serious social repercussions.
Evidently, suicide rates are higher among sexual minorities.
Lack of rights and protections promotes a homophobic culture.
It overemphasises and empowers patriarchy and masculinity.
Widespread homophobia leads gay men and women to create sub-cultures of self-hate, internalised homophobia, and oppression.
Lack of social acceptance and legal rights leads to abuse, violence, isolation, and mental illness.
Importantly, a rights-based framework is essential to India’s quest for social and economic development.

What should be done?

SC should take precedence from its own 2014 judgment that recognises transgender community as a third gender category.
It has also recently acknowledged “sexual orientation” an essential attribute of “identity” and “privacy”.
It should thus consider the issue of broader rights for sexual minorities.
This should include issues such as right to form partnerships, inheritance, employment equality, and so on.
India’s sexual minorities need not only decriminalisation but rights and protections from gender-identity-based discrimination.
Clearly, the Court has to expand its ambit to positively affect the lives of millions of Indians.

Source: Indian Express