Discrimination against gays will go if criminality of section 377 is removed: SC

Agencies
July 12, 2018

New Delhi, Jul 12: The Supreme Court today said the social stigma and discrimination attached to the LGBTQ community would go if criminality of consensual gay sex is done away with, while maintaining that it would scrutinise the legal validity of section 377 of the IPC in all its aspects.

A five-judge bench headed by Chief Justice Dipak Misra, hearing a clutch of petitions challeging the constitutional validity of the 158-year-old penal law, also rejected a proposal of lawyers, seeking retention of section 377, that public opinion should be elicited on the matter, saying it did not want a referendum but would go by constitutional morality.

The bench took note of the vehement opposition of these lawyers and their allegation that the Centre has taken a "U-turn" in the case.

"On the mere concession of the Centre, we will not say that the section is ultra-vires. We will have to analyse every aspect. We will do a detailed analysis of Section 377 and its constitutional validity," the bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.

"We will try to see whether section 377 of the IPC can stand the test of fundamental rights enshrined under Articles 14 (right to equality), 19 (freedom of speech and association) and 21 (right to life and liberty) of the Constitution," the bench said. 

It also objected to the submission of lawyer Manoj George that the Centre has made a U-turn on its stand and said that several verdicts including the one on right to privacy have come in the meanwhile and it would not be appropriate to call it a "U-turn".

The court observed that an environment has been created in the Indian society over the years that has led to deep-rooted discrimination against the community which has also adversely impacted their mental health.

The bench asked lawyer Maneka Guruswamy, who was appearing for a petitioner, whether there was any law, rule, regulation, bye-law or guideline which barred or restrained homosexuals from availing any right which are available to others.

"There are no such provisions," she said.

The bench then said the LGBTQ (lesbian, gay, bisexual, transgender and queer) community faced the stigma because of the criminality attached to consensual same-sex relationship.

"Once the criminality (under section 377) goes, then everything will go (social stigma, discrimination etc)," it said.

"Over the years, we have created an environment in the Indian society which has led to deep-rooted discrimination against people of same sex involved in a consensual relationship and this has impacted their mental health also," the bench said on the third day of crucial hearing to decide the constitutional validity of Section 377 of the IPC.

Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. 

Referring to the provision of the Mental Health Care Act, the bench said "it also recognises the fact that such persons cannot be discriminated against on the ground of sexual orientation".

The observations came when senior advocate C U Singh, appearing for one of the intervenors, said mere striking down of section 377 will not serve the purpose as the LGBTQ community were being discriminated against on various counts.

"This community feels inhibited as they do not even get proper medical care because of the prejudice," Justice Malhotra said, adding even medical professionals do not maintain confidentiality.

The advancing of arguments remained inconclusive and would resume July 17. 

Yesterday, the government had left it to the apex court to test the constitutional validity of section 377, urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it.

Taking note of the Centre's submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said it was not considering all these issues.

The bench had said it would test the validity of the law in relation to the consensual sexual acts of two adults and if it decides to strike down the penal provision then it would remove "ancillary disqualification" of LGBTQ community members which can join services, contest elections and form associations.

Lawyer Guruswamy had yesterday referred to reports of Indian and American psychiatric bodies and said homosexuality was a normal sexual orientation.

Terming the law as a "terrible colonial legacy", she had said it violated Articles 15 (discrimination on sex), 14 (equality), 19 (liberty) and 21 of the Constitution and has a "chilling effect" on the sexual minority.

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News Network
April 19,2020

New Delhi, Apr 19: The government on Sunday prohibited the sale of non-essential items through e-commerce platforms during the ongoing lockdown, four days after allowing such companies to sale mobile phones, refrigerators and ready-made garments.

Union Home Secretary Ajay Bhalla issued an order excluding the non-essential items from sale by the e-commerce companies from the consolidated revised guidelines, which listed the exemption given to the services and people from the purview of the lockdown.

The order said the following clause "E-commerce companies. Vehicles used by e-commerce operators will be allowed to ply with necessary permissions" is excluded from the guidelines.

The previous order had said such items were allowed for sale through e-commerce platforms from April 20.

However, the reason for reversing the order is not known immediately.

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News Network
January 13,2020

Jan 13: For the first time in years, the government of India’s Prime Minister Narendra Modi is playing defense. Protests have sprung up across the country against an amendment to India’s laws — which came into effect on Friday — that makes it easier for members of some religions to become citizens of India. The government claims this is simply an attempt to protect religious minorities in the Muslim-majority countries that border India; but protesters see it as the first step toward a formal repudiation of India’s constitutionally guaranteed secularism — and one that must be resisted.

Modi was re-elected prime minister last year with an enhanced majority; his hold over the country’s politics is absolute. The formal opposition is weak, discredited and disorganized. Yet, somehow, the anti-Citizenship Act protests have taken hold. No political party is behind them; they are generally arranged by student unions, neighborhood associations and the like.

Yet this aspect of their character is precisely what will worry Modi and his right-hand man, Home Minister Amit Shah. They know how to mock and delegitimize opposition parties with ruthless efficiency. Yet creating a narrative that paints large, flag-waving crowds as traitors is not quite that easy.

For that is how these protests look: large groups of young people, many carrying witty signs and the national flag. They meet and read the preamble to India’s Constitution, into which the promise of secularism was written in the 1970’s.

They carry photographs of the Constitution’s drafter, the Columbia University-trained economist and lawyer B. R. Ambedkar. These are not the mobs the government wanted. They hoped for angry Muslims rampaging through the streets of India’s cities, whom they could point to and say: “See? We must protect you from them.” But, in spite of sometimes brutal repression, the protests have largely been nonviolent.

One, in Shaheen Bagh in a Muslim-dominated sector of New Delhi, began simply as a set of local women in a square, armed with hot tea and blankets against the chill Delhi winter. It has now become the focal point of a very different sort of resistance than what the government expected. Nothing could cure the delusions of India’s Hindu middle class, trained to see India’s Muslims as dangerous threats, as effectively as a group of otherwise clearly apolitical women sipping sweet tea and sharing their fears and food with anyone who will listen.

Modi was re-elected less than a year ago; what could have changed in India since then? Not much, I suspect, in most places that voted for him and his party — particularly the vast rural hinterland of northern India. But urban India was also possibly never quite as content as electoral results suggested. India’s growth dipped below 5% in recent quarters; demand has crashed, and uncertainty about the future is widespread. Worse, the government’s response to the protests was clearly ill-judged. University campuses were attacked, in one case by the police and later by masked men almost certainly connected to the ruling party.

Protesters were harassed and detained with little cause. The courts seemed uninterested. And, slowly, anger began to grow on social media — not just on Twitter, but also on Instagram, previously the preserve of pretty bowls of salad. Instagram is the one social medium over which Modi’s party does not have a stranglehold; and it is where these protests, with their photogenic signs and flags, have found a natural home. As a result, people across urban India who would never previously have gone to a demonstration or a political rally have been slowly politicized.

India is, in fact, becoming more like a normal democracy. “Normal,” that is, for the 2020’s. Liberal democracies across the world are politically divided, often between more liberal urban centers and coasts, and angrier, “left-behind” hinterlands. Modi’s political secret was that he was that rare populist who could unite both the hopeful cities and the resentful countryside. Yet this once magic formula seems to have become ineffective. Five of India’s six largest cities are not ruled by Modi’s Bharatiya Janata Party in any case — the financial hub of Mumbai changed hands recently. The BJP has set its sights on winning state elections in Delhi in a few weeks. Which way the capital’s voters will go is uncertain. But that itself is revealing — last year, Modi swept all seven parliamentary seats in Delhi.

In the end, the Citizenship Amendment Act is now law, the BJP might manage to win Delhi, and the protests might die down as the days get unmanageably hot and state repression increases. But urban India has put Modi on notice. His days of being India’s unifier are over: From now on, like all the other populists, he will have to keep one eye on the streets of his country’s cities.

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News Network
January 21,2020

Amaravati, Jan 21: Telugu Desam Party president N Chandrababu Naidu and at least 17 MLAs of his party were taken in police custody late on Monday as they tried to conduct a foot march from the state assembly to nearby Mandadam village in violation of prohibitory orders.

TDP leaders started off on the march after staging a sit-in near the assembly main entrance following the suspension of 17 MLAs from the House for the day.

They were protesting the AP Decentralisation and Inclusive Development of All Regions Bill, 2020, that was passed by the assembly, enabling the establishment of three capitals for the state.

The TDP leaders were taken to the Mangalagiri police station.

Meanwhile, tensions prevailed at the Jana Sena Party headquarters at Mangalagiri as police prevented its president Pawan Kalyan from proceeding to the Amaravati region to speak to protesters fighting for the retention of only one capital for the state.

DIG Kanti Rana Tata and other senior police officials reached the Sena office and blocked the exit of Kalyan and political affairs committee chairman Nadendla Manohar, resulting in an argument.

Kalyan asked how could police impose restrictions within his own office.

Scores of Sena workers gathered outside the office even as a large posse of police was posted to thwart Kalyan and other leaders' plans.

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