The Supreme Court of India on Thursday delivered a historic judgment de-criminalising Section 377 of Indian Penal Code which criminalised homosexuality or same-sex marriage in India. The five-judge bench said LGBTQ community has same fundamental rights as others.
The Supreme Court of India on Thursday delivered a historic judgment de-criminalising Section 377 of Indian Penal Code which criminalised homosexuality or same-sex marriage in India. The five-judge bench said LGBTQ community has same fundamental rights as others. Respect for each others rights, and others are supreme humanity. Criminalising gay sex is irrational and indefensible, observed CJI Dipak Misra.
The issue had remained a long-debated subject in the country. The colonial-era law states that any sexual activity against the ‘order of the nature’ will be deemed as a crime. The proponents of the law equate it with ‘culture and tradition’, while the opposers see it as breach of person’s right to privacy. The matter, on which a batch of pleas have been filed, will be judged by a five-judge bench comprising Chief Justice of India Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
Timeline of Section 377: LGBT rights — succeeding order
July 2009: Delhi High Court decriminalises homosexuality
Delivering a landmark verdict, the High Court of Delhi decriminalised homosexuality among consenting adults in July, 2009. The bench of then Chief Justice AP Shah and Justice S Murlidhar held section 377 as ultra wires with Article 14, 15 and 21 of the Constitution of India. “We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21,14,and 15 of the Constitution,” the bench ruled.
December 2012: Supreme Court quashes High Court order – Homosexuality a crime again
In December 2012, a two-judge bench of Justice GS Singhvi and Justice SJ Mukhopadhaya of the Supreme Court of India quashed the order issued by Delhi High Court, terming it a ‘legally unsustainable’ verdict. The top court said that a “miniscule fraction of the country’s population constitute LGBT,” adding that less than 200 people have been arrested under the law in the past 150 years. However, the court left scope and added that legislature may strike down the law if it finds it a necessity.
Supreme Court reconsiders petitions regarding the law
In 2014, Naz Foundation, an NGO fighting for LGBTQ rights, filed a review petition which was quashed. To many people’s surprise, the Supreme Court reconsidered petitions filed a by a group of well known LGBT rights activists, S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. The petition claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”
Centre’s stand on the law
In 2015, BJP-led Central government led had said it would take a decision regarding the law. The same year, Congress MP Shashi Tharoor proposed bringing an introduction of a private member’s Bill to decriminalise homosexuality. The bill was overwhelmingly opposed by BJP dominated Lok Sabha.
July 10, 2018: SC begins hearing on Section 377
A five-judge Constitution bench led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, began hearing petitions challenging Section 377.