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