Hindustan Times (Lucknow)

Apex court verdict on Section 377 today

IN SC Verdict likely on decriminal­ising gay sex

- HT Correspond­ent letters@hindustant­imes.com ▪

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.

 ?? HT FILE ?? LGBT community is waiting for SC ruling on Sec 377.
HT FILE LGBT community is waiting for SC ruling on Sec 377.

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