Decriminalization of Homosexuality by a Constitution Bench of the Supreme Court, Aadhar Judgement and Beggary Act (Download PDF)

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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

- Published/Last Modified on: April 29, 2020

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