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Tag Archives | equality

Why should Section 377 go?

Repealing of Section 377 by the Supreme Court will mean victory for equality and dignity of the individual

A strange kind of football was being played between the Indian legislature and judiciary on Section 377 of Indian Penal Code(IPC). Section 377 outlaws relationship between same sex couples and carries a stiff penalty of imprisonment up to 10 years. Enacted by our colonial masters in 1862, it smacks of medieval prejudice which by any stretch or argument, is draconian in the present day context. The Supreme Court in December 2013 reversed a Delhi High Court verdict of 2009 decriminalising gay sex. The central government officially stated that it cannot intervene in this matter as it is sub-judice. An attempt by Congress MP Shashi Tharoor, to introduce the Bill in the parliament during the winter session in 2015 was scuttled without even being debated.

The Supreme Court on February 2, 2016 referred a batch of curative petitions against Section 377 to a five-judge Constitution Bench for in-depth hearing.  In legal terms, a curative petition is the last resort for redressal of grievances. While referring the matter to a five-judge bench, the Chief Justice noted that the case involves questions with constitutional dimensions. There is a strong lawful argument to strike down Section 377. That right to privacy is a fundamental right. And a person’s sexuality is the most precious and private of rights.

In June 2015, the US Supreme Court ruled that the gay community was entitled to due process and equal protection in the matter of marriage thus legalising gay marriages. In fact, this was a hard won battle by the Lesbian, Gay, Bisexual, and Transgender (LGBT) activists. There are 21 countries in the world where same sex marriages are legal. England repealed this law in 2013. According to Lawyers Collective, Section 377 lacks precise definition. It has come to include all manner of “immoral” acts other than acts that are considered natural. This section violates articles 14, 15, 19, and 21 of the Indian constitution which guarantee equality, freedom of expression and personal liberty to all its citizens.

Although chances for success in a curative petition are very slim, this is the time for a serious introspection and honest evaluation by the apex court. Where does the honourable court stand on the issue of homosexuality?  This is not a matter of judicial overreach. All that the Supreme Court should do is to enforce the fundamental rights of the citizens of India.  For a liberal democracy, to criminalise sexual activity between consenting adults of the same sex is plain repressive which places it in the same league as some Middle Eastern countries.

 

Guru Aiyar is a research scholar at Takshashila Institution and tweets @guruaiyar

Featured Image: Law and Order by Paige, licensed from creativecommons.org

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The question of gender justice in religious places of worship

The prohibition of entry to women in Sabarimala shrine is being contested by lawyers in the Supreme Court which will open a pandora’s box for other faiths too

 

The Supreme Court on 11th January, has asked the government of Kerala that why women cannot be given entry to the Sabarimala temple. Gautam Bhatia, a Delhi based lawyer has offered interesting insights into the case. The SC is hearing a 10 year old petition filed by Indian Young Lawyers’ Association (IYLA). The case is coming up for hearing again on 18th January. Women between the ages of 10 and 50 have been traditionally denied entry in the temple on the grounds that they are ‘impure’. This has been a custom going back 1500 years. The Travancore Devaswom Board (TDB) which administers the temple is responsible for enforcing this custom.

The challenge to enforcing the custom by the board brings judiciary to interpret the laws pertaining to rights guaranteed by the constitution to individuals.  Article 25 (1) guarantees to all persons the right to freely profess, practise, and propagate their religion. Article 26 (b) grants to religious denominations the right to manage their own affairs in the matter of religion. However, Article 25 (2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.

The temple board has argued that the custom is essential to the practise of the religion.  If the board fails to prove that prohibiting women is an essential religious practice, then it cannot claim immunity under Article 26 (b). Women worshippers can also argue that prohibiting them from access violates their right to worship under Article 25(1). This takes us to the question of interpreting the law from the aspect of ‘state-shrine’ relationship.  Article 25(1) is enforceable against the state and not individuals, or corporate bodies. If the board can argue that it is corporate body, Article 25 (1) cannot be applied.

If this be so, then IYLA can argue that it is the duty of the state to guarantee a woman’s right to worship. The women devotees may ask the court to direct the state to take all necessary steps to guarantee their access and safety to the shrine.  Interestingly, judgement in this case will open up issues pertaining to other religions also. There is a case pending in Bombay High Court, filed by Muslim women asking for the recognition of their right to enter the inner sanctum for worship at the Haji Ali shrine in Mumbai. The question of gender justice in religious institutions is the charter of state which is responsible to enforce the constitution. Being a secular state, the governments have not interfered in the matters of individual religions which are administered by their respective religious bodies. The ramification of judgement in this case will be then to find a solution which will advance the constitutional guarantee of equality, non-discrimination and freedom of religion.

 

Guru Aiyar is a research scholar with Takshashila Institution and tweets at @guruaiyar.

Featured Image credit: Law.gov–opening up primary legal materials, licensed under creative commons.

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