India’s LGBT community to have their day in court

India’s Supreme Court will revisit its earlier verdict on Section 377 of the IPC which criminalised homosexuality.

Section 377 of the Indian Penal Code dating back to 1861, introduced during the British rule of India (modelled on the Buggery Act of 1533,) criminalises sexual activities “against the order of nature”, arguably including homosexual sexual activities.

The matter will now be referred to a larger bench. A three-judge bench headed by CJI Dipak Misra on Monday said the apex court would reexamine the Constitutional validity of Section 377.

The lesbian gay bisexual transgender (LGBT) community has been demanding scrapping of Section 377, under which consensual sexual acts between members of the same sex are an offence entailing punishment up to life term. 

“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 observed.

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

Earlier in 2009, the Delhi High Court decriminalised Section 377. However, a bench of Justices G S Singhvi and S J Mukhopadaya in 2013 set aside the high court verdict.

In August this year, the Supreme Court, in its landmark judgment on the privacy issue, said that “sexual orientation is an essential attribute of privacy”.

It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.

A curative petition filed by Naz Foundation and others on Section 377 has been pending before a five-judge Constitution Bench since 2014.

The colonial-era IPC Section 377 criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community (lesbian, gay, bisexual, transgender, queer, intersex).

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