Apex court verdict on Section 377 today
IN SC Verdict likely on decriminalising gay sex
The SC will pronounce on Thursday its verdict on petitions challenging the Constitutional validity of Section 377 of the IPC, which criminalises consensual gay sex. A five-judge Constitution bench had reserved its verdict on July 17. The Centre had left to the wisdom of the court the issue of legality of the penal provision with regard to the aspects of criminalising consensual unnatural sex between two consenting adults.
NEW DELHI: Will the Supreme Court decriminalise homosexuality?
This question will be decided on Thursday by a constitution bench of the top court hearing a batch of petitions challenging Section 377 of the Indian Penal Code, a colonial law that outlaws same-sex acts.
A five-judge bench comprising Chief Justice of India (CJI) Dipak Misra , Justice R F Nariman, Justice AM Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra had concluded hearing in the case and reserved its verdict 49 days ago. This judgment is the first in the series of 10 important verdicts that the CJI will be a part of before his retirement on Oct 2.
In 2016, the top court had admitted a petition filed by five members of the lesbian, gay, bisexual and transgender (LGBT) community – Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra -- challenging the constitutionality of Section 377 .
Subsequently, another clutch of petitions were filed by more members of the LGBT community.
Section 377 of the Indian Penal Code punishes “carnal intercourse against the order of nature with man, woman or animal” with life imprisonment, though formal prosecution is rare. But activists allege the law forces LGBT people to live in fear and face blackmail, intimidation and pervasive discrimination.
The petitions asserted the members of the LGBT community lived in fear because of Section 377 and ignored harassment and problems arising out of the law. In July 2009, the Delhi high court had read down Section 377. However, in December 2013, the Supreme Court reversed the 2009 verdict and re-criminalised gay sex.
The issue of Section 377 came under the spotlight last year with the Right to Privacy judgment, where nine top court judges said just because “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”, it is not a sustainable basis to deny the right to privacy.
Ruling on whether citizens have a right to privacy or not, the court touched on the rights of LGBT vis-a-vis privacy and said, “Sexual orientation is an essential attribute of privacy. And we disagree with the manner in which Koushal (the 2013 SC judgment) has dealt with the privacy – dignity-based claims of LGBT persons in this aspect.“
The NDA government has chosen not to take a stand in the matter. It has left it to the court’s wisdom but asked the court to clarify that the right to choose a partner should not extend to “perversions like incest” or questions of civil rights.
During the course of hearing, the bench had rejected the idea of letting Parliament take a decision on repealing Section 377. The bench had observed that a government in majority, swung by votes, will not touch an offending law and therefore Constitution empowers the court to strike it down the moment it is found to be unconstitutional. The petitions were opposed by the Apostolic Alliance of Churches, Utkal Christian Association and some other NGOs and individuals.