Brewing fresh hopes among India’s LGBTQ community, the Supreme Court said it would not wait for the government to act if a law violates fundamental rights of citizens. This raised optimism among those appealing to India’s apex court to strike down Section 377 of the Indian Penal Code.
Just last week, the Supreme Court had said that social stigmas associated with the LGBTQ community can be lifted if criminality of consensual gay sex is done away with. Section 377 criminalises all consensual sex between people of the same gender. Violators in India may face imprisonment for life, a 10-year sentence and also be charged with a hefty fine.
Public acceptance of homosexuality in India would help people in those relationships seek medical assistance for related illnesses, the five-member bench of judges stated. People living in denial were most vulnerable to little or no medical attention and at most risk to contract and spread AIDS.
Questioning Morality
“So heterosexual people do not transmit HIV?” Justice Indu Malhotra questioned lawyers arguing to uphold 377. The bench went on to explain that sexually transmitted diseases are not caused by sexual intercourse, but unprotected intercourse.
“A village woman may get the disease from her husband, who is a migrant worker. This way would you now want to make sexual intercourse itself a crime?” Justice Chandrachud asked lawyers supporting Section 377.
In another remarkable statement, the Supreme Court also mentioned that prohibitions have never fixed issues in society. All prohibition was wrong and kicking it “under the carpet due to some Victorian-era morality” only leads to health concerns, Justice Rohinton Nariman added.
Marriage does not give consent for sex
Meanwhile, the Delhi High Court was hearing arguments on making marital rape a criminal offense. The court mentioned that marriage gives both men and women the right to say no to physical relationships.
The HC also added that force is not a pre-condition to rape and that a man could even financially pressure his spouse to enter into a sexual relationship with him. Arguments put forward by a men’s welfare group were rejected which said that the use of force or threats were important factors for rape. The NGO is opposing the legalization of rape as an offense.
These statements from two of India’s most prominent judiciary bodies have instilled much-needed hope for those fighting in these causes. India remains among the largest countries in the world where homosexual acts are punishable by law, while women’s safety is still among the most immediate social concerns.
