Decriminalization of Homosexuality by a Constitution Bench of the Supreme Court, Aadhar Judgement and Beggary Act
Decriminalization of homosexuality
A Constitution Bench of the Supreme Court.
Concerns
- Creates a class of criminals consisting of individuals who engage in consensual sexual activity.
- Led to stigmatisation, condemnation and even ineffective HIV prevention and treatment among LGBTQ individuals.
Sex-offenders category
- Lesbian
- Gay
- Bisexual
- Transgender
- Queer (LGBTQ) individuals
Judgment
- Held that the Section 377 would apply to “unnatural” sexual acts like bestiality.
- Criminalization of private consensual sexual conduct between adults of the same sex was clearly unconstitutional.
- Under Section 377, sexual act without consent would also continue to be a crime.
SC՚s Rationale
- Individual
- Rights
- Society
- Right to Love
- Nature
- Perception
Shortcomings
- Practical implementation of the judgment is yet to be seen.
- New guidelines will be needed as the judgment has opened up grey areas.
Aadhaar
- The Supreme Court recently upheld the constitutionality of the Aadhaar.
- Majority verdict (4 out of 5 judges) .
- A document of empowerment.
- All the matters pertaining to an individual may not be an inherent part of the right to privacy.
- Article 21 of the constitution protects only those matters in which there was a reasonable expectation of privacy.
Money Bill
- Individuals should produce Aadhaar to access social services, subsidy, benefits etc under Section 7 of the Aadhaar Act.
- The validity of the Aadhaar Act being passed as a Money Bill is upheld since section 7 is the main provision of the act.
Surveillance State
- Collection of minimal biometric data in the form of iris and fingerprints.
- UIDAI does not collect purpose, location or details of the transaction.
Biometric Data Security
- Only registered devices to conduct biometric-based authentication transactions by UIDAI.
- The biometric data is encrypted within the device using a key.
- The authentication agencies are not allowed to store the biometrics captured for Aadhaar authentication as per the regulations.
Telecoms
- Aadhaar-based re-verification of mobile numbers has been held illegal and unconstitutional.
- Telecoms cannot insist on customers to furnish Aadhaar details.
- Corporate bodies banks, mobile wallets etc cannot ask for Aadhaar number.
PAN
- Section 139AA of IT Act makes Aadhaar mandatory for filing IT returns and applying for PAN.
- Linking of PAN with Aadhaar will be mandatory.
- No deadline mentioned by the court.
Aadhaar Provisions
Aadhaar for education-Statutory bodies like CBSE and UGC cannot ask students to produce their
- Aadhaar cards for examinations like NEET and JEE.
- Aadhaar would also not be compulsory for school admissions as “it is neither a service nor subsidy” but a fundamental right for children between 6 and 14.
Section 33 (1) , Aadhaar Act
- Prohibits disclosure of information (identity and authentication) .
- Except when it is by an order of a district judge or higher court.
Section 33 (2) , Aadhaar Act
- Provides for disclosure of information in the interest of national security.
- Directed by an officer of Joint Secretary or higher rank.
Section 47, Aadhaar Act
- Provides for cognizance of offence.
- Only on complaint by UIDAI (or any person authorised by it) .
Section 57, Aadhaar Act
- Provides for use of Aadhaar number.
- Establishing the identity of an individual for any purpose by the state or any corporate or person.
Regulation 26 (C) , Aadhaar Regulations
- Allowed UIDAI to store metadata relating to transactions.
- The court struck down this regulation in its present form.
Regulation 27
- Allowed archiving transaction data for 5 years.
- Now reduced only upto 6 months.
Striking down of Beggary Act
- Certain Sections of Bombay Prevention of Beggary Act, 1959.
- Struck down as unconstitutional by the Delhi High Court.
- No central act in India on beggary.
- The Bombay Prevention of Beggary Act, 1959 has been used by many states and Union Territories as the basis for their own laws.
Bombay Prevention of Beggary Act, 1959 (Objective)
- To keep the streets of then Bombay clear of the destitute
- Leprosy patients
- Mentally ill
Contentious Provisions
- Essentially criminalizes begging.
- Individuals can be arrested without a warrant by the police.
- Magistrates enjoy the power to commit them to a “certified institution” (a detention centre) .
- Detention for the first offence- 3years
- Detention for the second offence-10 years.
- The criminals are compelled to be fingerprinted.
- Authorizes the detention of people “dependant” upon the “beggar” .
- Separation over the age of 5.
- Absolute power over detainees is being enjoyed by the certified institutions.
Powers included
- Power of punishment
- Power to exact “manual work”
- Any disobedience to the rules of the institution can land an individual in jail
Court՚s Order and Observations
- Essentially decriminalized beggary.
Struck down among the 25 provisions:
- Permitting the arrest, without a warrant, any person found begging
- Conducting a summary inquiry
- Taking the person to court
- Detaining the person for up to 10 years
- Provisions that donot treat beggary per as an offence has not been struck down.
- Also a Section that deals with penalty for employing or causing persons to beg has not been struck down.
- As per the bench, the Begging Act was a violation of Article 14 and Article 21 of the Constitution.
- As per the bench under Article 21, it was the State՚s responsibility to provide the basic necessities for survival to all its citizens.
- It was observed that poverty was due to the result of the state՚s inability or unwillingness to discharge these obligations.
Alternatives
- Repealing of the Act through the Persons in Destitution (Protection, Care and Rehabilitation) Model Bill, 2016.
- Provisions included doing away with the Beggary Act and some provisions also allowed detention.
- Also proposes rehabilitation centres for the destitute in each district.
- The discussion on the bill was halted in 2016.
Bihar Model
- The Mukhyamantri Bhikshavriti Nivaran Yojana.
- Open homes were set up instead of detaining persons under the Act.
- Community outreach for destitute persons was put in place.
Setting up of rehabilitation centres:
- With facilities for treatment
- Family reintegration
- Vocational training
✍Examrace Team at Aug 27, 2021