BRUNEI’S LGBT COMMUNITY LIVES IN FEAR
05, Apr 2019
Prelims level : Basic knowledge of the SC decision on Section 377. Mains level : Vulnerable sections of the population and their protection and betterment.
Why is it in News?
- The absolute monarcy in borneo island, implemented new sharia laws prescribed death penalty for gay sex, and adultery.
- The LGBT community or GLBT community, also referred to as the gay community, is a loosely defined grouping of lesbian, gay, bisexual, transgender, LGBT organizations, and subcultures, united by a common culture and social movements.
Violation of rights:
- The country’s tiny lesbian, gay, bisexual and transgender (LGBT) community, who already had to be discreet about their sexual identities in the highly conservative Muslim country, have been left terrified. “What Brunei is adopting is a violation of basic human rights,”
Section 377 in India:
- It came into force in 1862 and deals with consensual private sexual acts between adults. The archaic, colonial-era law criminalizes “carnal intercourse against the order of nature”. Naz Foundation filed the first major case, Naz Foundation vs. Government of NCT of Delhi & Ors against Section 377 in 2001. However, a two-judge Delhi High Court Bench dismissed the case in 2004, terming it as a mere academic challenge to the constitutionality of a legislative provision.
- As a result, in a landmark decision on 2009, the High Court decriminalized Section 377, ruling that consenting intercourse between two adults was not illegal.
- On December, 2013, a two-judge Supreme Court Bench upheld the appeal and recriminalized gay sex. The second landmark judgment in terms of LGBTQI rights came on August 2017, when a nine-judge Bench of the Supreme Court ruled that the right to privacy was a fundamental right. In July 2018, a Constitution Bench, led by Chief Justice Dipak Misra, re-opened the entire issue, saying a section of people could not live in fear of the law which atrophied their rights to choose, privacy and dignity.
- The SC chose to restrict its decision to the question of decriminalization without commenting on other rights that would extend equal citizenship to the community may have been the product of an intelligent litigation strategy.
- While the government left the constitutionality of Section 377 to the “wisdom of the court”, it
- argued that the Court should only go so far and no further.
- The current government and its successor following the next election cycle must hold themselves to the other side of this argument.