Section 377 discourse gets a new life; SC to revisit its 2013 order criminalising gay sex

The LGBT community has been demanding scrapping of Section 377 of the IPC, which says any kind of sex except peno-vaginal is a crime

The Supreme Court on Monday agreed to review its 2013 judgment on Section 377 of IPC which criminalises homosexuality.

Responding to a writ petition filed by members of LGBTQ community, a three-judge bench of Supreme Court, headed by CJI Dipak Mishra said, a constitutional bench will review Section 377 of Indian Penal Code that makes such relations a crime.

The apex court also observed that SC’s earlier order upholding the constitutional validity of Section 377 appears to have hurt sentiments.

“A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can’t be allowed to cross boundaries of law but confines of law can’t trample or curtail the inherent right embedded in an individual under Art 21 of Constitution,” the bench said.

The court also issued a notice to the Centre seeking its response to the writ petition. The petitioners said that they live in constant fear of police action because of their sexual preferences.

BJP

The court’s move came a few month’s after a nine-judge Constitution Bench held Right to Privacy as a fundamental right and denounced discrimination on the basis of sexual orientation.

The LGBT community has been demanding scrapping of Section 377 of the IPC, which says any kind of sex except peno-vaginal is a crime.

This section has been a bone of contention in India for several years now.

What is Section 377.

Section 377 of the Indian Penal Code dating back to 1860 was framed during British rule.

The law says

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 152[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Notedly, the law not only criminalises sex between people of same gender, it also criminalises certain acts between heterosexuals.

Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section

How the Courts’s have reacted so far

In 2009, the Delhi High Court struck down section 377 stating that the law violates the principles of equality and non-discrimination in the Constitution.

However, a Supreme Court bench of Justices G S Singhvi and S J Mukhopadaya in 2013 set aside the high court verdict and ruled that Section 377 of the Indian Penal Code will continue making gay sex — “irrespective of age and consent” — an offence.

LGBT-color-supreme court

The Court also held that it did “not suffer from any constitutional infirmity” and that it was for Parliament “to consider the desirability and propriety of deleting Section 377 from the statute book or amend it.

The apex court’s verdict drew flak from LGBT members, human right activists, United Nations, and several politicians. Since then, several gay pride parades and other protests have been held across the country to express community’s disapproval of the SC ruling.

In Parliament

On December 19, Law Minister Ravi Shankar Prasad said that a consensus is required to take any decision regarding Section 377, while replying to a debate on two bills passed by the Lok Sabha.

The debate was to repeal obsolete laws and a demand by BJD MP Pinaki Misra to strike down Section 377 of the Indian Penal Code, 1860.

Misra then said that the Supreme Court had repeatedly mentioned that it is up to Parliament to take any decision on this “archaic” law.

Bhopal Pride Parade, LGBTQ pride parade

“The 2012 judgement, by which the Delhi High Court in a very bold move struck down (IPC section) 377, was set aside by the Supreme Court in the 2013 judgement on the grounds that it is the job of the legislature to do away with it, and it is not the job of the court to legislate,” Misra added.

In December 2015, Congress MP Shashi Tharoor brought the Indian Penal Code (Amendment) Bill seeking changes in Section 377 of IPC (unnatural offence) but it was defeated in the Lok Sabha.

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