• The apex court referred to a Constitution bench the petition seeking to decriminalise consensual sex between LGBTQ adults
  • The SC today also issued a notice to the Centre seeking its response to the same writ petition
  • This petition, filed by members of the LGBTQ community, said they live in fear of the police because of their sexual preferences

Section 377: A three-judge bench headed by CJI Dipak Misra on Monday said the apex court would reexamine the Constitutional validity of Section 377.

NEW DELHI: Thanks to the right to privacy being deemed a fundamental right, the Supreme Court (SC) today agreed to reconsider its 2013 decision+ which criminalised gay sexual relations and said it will review Section 377 of Indian Penal Code that makes such relations a crime.
The SC today also issued a notice to the Centre seeking its response to a writ petition filed by five members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, who said they live in fear of police because of their natural sexual orientation and preferences.

The apex court also referred to a Constitution bench the petition seeking to decriminalise consensual sex between LGBTQ adults.

In December 2013, the SC set aside the Delhi High Court‘s 2009 verdict decriminalising homosexuality.

A three-judge bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said the SC’ s December 2013 judgment upholding the validity of Section 377 – which says sexual intercourse between consenting adults of the same gender is a crime – appears to hurt the sexual preferences of individuals.

The three-judge bench took into account views expressed in another judgment in August, which gave the right to privacy the status of a fundamental right. That judgment was also in favour of respecting the freedom of individuals to their sexual orientation.

After the SC’s privacy judgment in August, activists and lawyers working for LGBTQ community made a strong case for the rights of sexual minorities. At the time, activist Gautam Bhan said SC’s reading of the right to privacy as an aspect of dignity and equality, particularly in the case of LGBTQ rights, was welcome.

‘Section 377 repeal matter of formality now’

“We could have gone to court on privacy grounds. But we didn’t because that is not acceptance. It is just tolerance that favours the elites who can afford to conduct their lives behind closed doors. The judgment is much more than that. It has spoken of privacy with dignity and equality. It reaffirms the Delhi High Court judgment in speaking of sexuality within the framework of constitutionality,” Bhan said.

After the SC announced its decision today, LGBTQ activists and supporters welcomed the move.

We need to welcome it. We still have hope from Indian judiciary. We are living in 21st century. All politicians & political parties must break their silence & support individual’s sexuality: Akkai, LGBT Activist on SC bench to reconsider constitutional validity of section 377

In 2013, when the SC reversed the Delhi HC’s 2009 verdict, it held that the 150-year-old Section 377 , criminalizing gay sex, “does not suffer from the vice of unconstitutionality”.

 

Section 377 of the Indian Penal Code, enacted by British 153 years ago in 1860, terms consensual anal sex an “unnatural offence” and provides punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between man and woman, while holding that only penile-vaginal sex was not “against the order of nature”.

 

  1. Top government sources told NDTV they would “go by the court” and not push for criminalising gay sex, commenting that decriminalisation is a global trend.
  2. Gay rights activists across the country exulted over the Supreme Court ruling that said “societal morality changes from age to age. Law copes with life and accordingly change takes place”.
  3. The “section of people who exercise their choice should never remain in a state of fear”, said the judges.
  4. The Supreme Court also noted that “choice can’t be allowed to cross the boundaries of law but the confines of law can’t trample or curtail the inherent right embedded in an individual under Article 21, the right to life and liberty.”
  5. Under the law, those convicted under Section 377 of the Indian Penal Code face up to 10 years in jail.
  6. The top court acted on the petition by Aman Nath, the owner of Neemrana hotels, Navtej Johar, a classical dancer, celebrity chef Ritu Dalmia, former editor Sunil Mehra and restauranteur Ayesha Kapur.
  7. In 2013, the Supreme Court had cancelled a Delhi high court order that had decriminalized homosexuality by overturning the outdated law and said it was the job of parliament to decide on scrapping laws.
  8. That decision needs to be reconsidered because of constitutional issues, said the Supreme Court.
  9. In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution. It had responded to a petition by Naz Foundation, which has fought for almost a decade for gay rights.
  10. Although prosecution under section 377 is not common, gay activists say the police use the law to harass and intimidate members of their community.

TOI and NDTV

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