Section 377 verdict- Victory long-awaited

Section 377 verdict- Victory long-awaited

The world is changing for sure – Law is a reflection of what happens in Society and what is needed too. Therefore it will always change when society is transforming. One of the most striking examples of this has been the abolishing of major aspects of Section 377 of India Penal Code, a Colonial period law, which criminalized homosexuality besides other unnatural acts of carnal intercourse.

The change – Morality is not what the majority thinks

Post the landmark judgement on September 6, 2018, Lesbians, Gays, Bisexuals and Transgender (LGBT), are recognised as people with a distinct and separate identity, who deserve all rights guaranteed under the Constitution as available to any other citizen. They have a right to live with dignity which was to a certain extent barred by Section 377 which brought these under a microscopic criticism. They cannot be discriminated against for their sexual orientation. There is nothing unnatural about their attraction towards the same gender. Their right to privacy cannot be denied to them just because they are in the minority.


Also Read: Rights of Transgender in India


What was the Section 377 of IPC?

Section 377 of Indian Penal Code provides for punishment and fine, for sexual acts against the “order of nature.” As per the Section, unnatural acts like buggery, sodomy and bestiality are punishable. Consensual same-sex relation is also a criminal offence.

“Order of nature” is consensual sexual acts between man and woman only.

The constitutional validity of Section 377 and the Recent Verdict

The story started with the initiative of the NAZ Foundation, an NGO, in challenging the Constitutional validity of Section 377. It stated that the Section 377 so far as it criminalises consensual sexual acts between adults in private, violates the articles of Indian Constitution:

  • Article 14 (equality)
  • Article 19(1)(d) (freedom of speech, assembly, association and movement)
  • Article 21 (right to life and personal liberty)

It was argued that the section had been misused against homosexuals. It is unreasonable and arbitrary to criminalise non-procreative sexual relations. The term “unnatural” act has no nexus with procreative or non-procreative sexual acts.

Earlier the Hon’ble Supreme Court of India had turned down the argument of NAZ foundation and upheld the Constitutional validity of Section 377 stating that it does not criminalise particular orientation or identity. It only identifies certain acts which constitute an offence under Section 377.

  • In 2017, in Puttuswamy’s case, it was affirmed that the right to privacy is a fundamental right and it includes one’s sexual orientation. This decision opened the gates for the recent verdict.
  • The recent verdict of SC, reflects the sentiments of many people in India who now consider homosexuality as natural. SC has read down Section 377 so that consensual sexual relation between homosexuals in private is not a crime.

The ruling has brought cheers to the LGBT community. They have long been deprived of their right to privacy and the right to equality. Progressive International Community has also hailed the verdict as it has provided what everyone expected out of world’s largest democracy.

Section 377 – partially struck down

Section 377 has not been struck down as a whole. Consensual sexual relations among adult homosexuals have been taken out of the purview of the term “against the order of nature”.

Other acts covered under the section remain an offence:

  • Unnatural sex with animals
  • Unnatural sex with children
  • Sex among homosexuals without the consent of any of them

Read: Other Judgement


New Hope

The judgment has given a new hope to LGBT community that their other rights will also fall in place now. They will be respected and loved the way they are irrespective of their sexual orientation. They will be treated at par. No prejudices, no discrimination and no ostracism for being homosexual. More than just the legal victory or change that this decision symbolizes, it is the sentimental achievement that is worth mentioning. This surely will go down in the history of Indian Law as a milestone.

FREEDOM OF SPEECH AND EXPRESSION

freedom of speech and expression

We have been taught from childhood that the right to Freedom of Speech and Expression is a fundamental right guaranteed to the citizens of India. The Right to Freedom is guaranteed along with the seven other fundamental rights mentioned in the Indian constitution.

“Your freedom in a country can be gauged by the freedom you exercise in criticizing it”!!

While the above statement might fit into sarcasm, it holds greater validity than it appears. Freedom of speech is perhaps one of the most crucial aspects in an individual’s list of rights – ironically the most unappreciated too.

The theory of freedom of speech was born long back. England’s adopted freedom of speech in 1689, and it still exists. France adopted the right to freedom of speech and expression in 1789. These further confirmed that the Freedom of Speech and expression goes a long way into the past and is an indispensable right.

The Right to Freedom of Speech and Expression in India

The constitution of India provides Freedom of Speech to every citizen but with its expected set of restrictions. It means that the citizens freely express their views about others, the political system, government, the policies and bureaucracy etc.

However, freedom of speech is restricted on these grounds- national security, moral ground and provocation. As per this right, the citizens of the country enjoy the following rights:

  • Freedom to freely express ideas, opinions and to speak
  • Freedom to peacefully gather without any arms and ammunitions
  • Freedom to form groups, associations and unions
  • Freedom to move freely in the country
  • Freedom to settle in anywhere in the country
  • Freedom to opt for any vocation
  • Freedom to opt for any kind of business or trade which is not forbidden.

Indians also enjoy the right to information and are free to give their opinion on anything including the activities of the government. Freedom of Speech is also given to the mass media. It is free to share all that is going on in the country as well as around the world. Thus all this makes India a democratic country in a true sense.

What makes Freedom of Speech indispensable?

Speech

Freedom of speech is indispensable for the overall growth and development of a person and the nation as a whole. Restricting individuals, society, social and political system hamper the development of the nation and creates discomfort and dissatisfaction leading to stress. ‘A nation whose people are full of discontent fails to grow’.

Thus for the growth of the society, it is essential to have freedom of Speech which helps open up discussions that help in exchange of ideas. This freedom is also important because it makes the government act more responsibly as the government knows that it is being watched and can be confronted or reprimanded for the way it is governing.

The Basis of Democracy

Freedom of speech and expression is also identified as the basis of a democratic nation. A democratic government provides numerous rights to the citizens including the right to form the government. In a democratic state other than electing the government the citizens also enjoy the right to assert their opinion and be vocal about it if they feel that the elected government is not working as per the manifesto declared by it initially. This is why and how the right to freedom of speech forms the basis of democracy and is an essential right in the democratic nations.

TOUGHER RAPE LAWS AND THE RECENT UPDATES

Tougher Rape Laws and the recent updates

At present India has an increased emphasis on fighting sexual assault. In this regard, the death penalty as a punishment for the rapists of girls below the age of 12 has been approved, following an ordinance that altered an existing criminal law.

The Criminal Law Amendment Ordinance, 2018 has been therefore promulgated in this regard.

There are other stringent penal provisions for rape that has been promulgated under The Criminal Law Amendment Ordinance, 2018. They are:-

  • Indian Penal Code,
  • Code of Criminal Procedure,
  • Indian Evidence Act and
  • Protection of Children from Sexual Offences Act.

What is an ordinance?

  • Ordinances are laws that are announced by the President of India on the aid and advice of the Union Cabinet.
  • They are issued when Parliament is not in session.
  • They authorize the government to take immediate legislative action.

Important characteristics of the Ordinance

  • 10 Years minimum punishment for Rape.
  • 20 years minimum punishment for rape of a woman aged below 16.
  • 20 years of harsh confinement and maximum Death penalty or Life Imprisonment for committing rape on a girl below 12 years of age.
  • Fine imposed to be reasonable and just to meet the medical expenses and rehabilitation of the victim.
  • Police officer committing rape shall be given rigorous imprisonment of minimum 10 years.
  • Investigation in rape cases must be completed within 2 months.
  • No Anticipatory bail to be given to the accused of rape of girls of age less than 16 years.
  • Appeals in the rape cases to be disposed within 6 months.

 IPC Section 376 also amended:-

  • The minimum punishment for rape was earlier 7 years which now has been made 10 years. The Maximum punishment, however, remains the same as earlier, i.e. Life imprisonment.
  • A new clause (3) has been added which prescribes that the Minimum punishment of 20 years to be awarded to a person committing rape on a woman less than 16 years of Age.
  • Another section 376DA and section 376DB provide life imprisonment for persons accused of gang rape of woman less than 16 and 12 years of age respectively.
  • Death penalty for persons who committed gang rape of a girl of less than 12 years of age.
  • It is also provided that the fine imposed shall be given to the victim.