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Two Landmark Supreme Court Rulings

September 2018 will be remembered for Time Immemorial for two monumental Supreme Court rulings that reaffirmed people's faith in the judicial system of the country and struck down two regressive sections of the Indian Penal Court that challenged the basic structure of Indian democracy and fundamental rights - Section 377 and Section 497. These sections were the archaic residues of our colonial past which were carried along for centuries. Let's talk about these sections in detail and how they were nullified by the apex court. Section 377 of the Indian Penal Court (IPC) was introduced in 1861 during British rule in India. It was an act that criminalized homosexuality. It referred to "unnatural offenses" and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punishable with imprisonment for life.


Homosexuality, a sexual orientation where people are sexually attracted to people of their own sex was declared a crime, and this law was responsible for the systematic subjugation, suppression, and isolation of the Indian gay community for centuries altogether. When oppression becomes institutionalized, the very idea of freedom and liberty is dissolved. There are so many well-documented interviews and encounters with the homosexual community where they have shared harrowing experiences of insults, mockery, and ridicule that they have faced where gays have been called effeminate, eunuchs, and castrated men. They have been called 'unmanly' and 'girlish'. There are so many repugnant orthodox dictums and beliefs that homosexuality is a disease and therefore, can be treated. There are also religious orders passed against homosexuality and referred to it being spread like a disease that had to be forcefully stopped. There are so many religions that proclaim homosexuality as a vicious crime and adoption of it will lead to expulsion from the community. Instances of families throwing out homosexual children or getting them forcefully married to people from opposite sex thinking that marriage will cure them. They have never got the support of political parties who are busy pandering to the desires and beliefs of the majoritarian vote banks. Popular culture and films have stereotypical, prejudiced, and bawdy depictions of homosexual characters in films like Dostana (2008). A shift in the narrative display and portrayal of the gay community has come with films like ' Ek Ladki Ko Dekha Toh Aisa Laga' and 'Shubh Mangal Saavdhan'. But the social and mental acceptance and normalization of this phenomenon is still a long way. However, spearheading a positive change, on September 6, 2018, the Supreme Court decriminalized Section 377 of the IPC and gay sex among consenting adults in private. However, Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.


Another controvertible section of the Indian Penal Court, Section 497 has been a concurrent issue between the Supreme Court and the Centre. Section 497 states, "Whoever has sexual intercourse with a person who is and whom he has/or has reason to believe to be the wife of another man, without the consent and connivance of that man, such intercourse not amounting to the offense of rape, is guilty of the offense of adultery." It also states that a man found to be guilty of adultery shall be punished with imprisonment of either descriptive for a term that may extend to five years or with a fine or with both. A woman shall not be punished as an abettor in cases of adultery. The wife does not have the same rights if her husband commits adultery. Headed by Justice Dipak Misra, the Supreme Court had called the Adultery Act  'anti-women. The Bench excoriated the Act as treating women as property of men. Thereby meaning, with the consent of a husband, a woman can become an object to someone else's desires. That is a violation of a woman's agency and consent. It also raises the question that why should women take more load than men t0 subsist a marriage. The Centre has time and again defended the Act by saying that it preserves the sanctity of marriage and therefore, should be kept as a law. However, in September 2018, The Supreme Court abrogated the law and called it "unconstitutional".


These decisions have paved a way for New India as it had clasped the ropes of the retrogressive ideas of colonial history and emboldened the principles laid down in the Indian Constitution. It upheld the ethos of equality, liberty, and freedom and gave the marginalized sections of society hope to fight for their rights.


Tags: India #SupremeCourt #New


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