India

Section 377 Supreme Court hearing: All you need to know

A five-judge constitution bench will hear a bunch of petitions that demand the scrapping of Section 377.

New Delhi: The Supreme Court began hearing pleas challenging law that criminalises homosexuality, on Tuesday. The court will hear six petitions and interventions filed by NGO Naz Foundation, parents of queer people and Voices Against 377.

The court refused to adjourn the hearing despite Centre’s plea for more time to file its response on the issue on Monday. The top court will re-examine the issue after it set aside a Delhi High Court verdict of 2009 that held Section 377 as “unconstitutional”.

The archaic British law that makes homosexuality a crime will be up for re-examination on Tuesday by the Supreme Court, which pointed out seven months ago that “social morality changes from age to age”. A five-judge constitution bench will hear a bunch of petitions that demand the scrapping of Section 377.

The five-judge bench to re-examine the issue will comprise Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, and be headed by Chief Justice Dipak Misra.

What is Section 377?

The section states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with 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.”

This means that penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Heterosexuals can also be affected by this archaic law, since consensual sexual acts of adults – oral and anal sex in private – are treated as unnatural and punishable under Section 377 of the Indian Penal Code.

List of events over the years:

In January 2018, a bench of the Supreme Court, headed by Chief Justice of India Dipak Misra, said social morality changes from age to age and “what is natural to one may not be natural to the other.”

“Choice can’t be allowed to cross the boundaries of law” but the court pointed out that the law can’t “trample or curtail” the constitutional right to life and liberty, added the bench.

In July 2009, the Delhi High Court had decriminalised gay sex between consenting adults, bringing it out of the ambit of Section 377.

In December 2013, the Supreme Court reversed Delhi High Court’s order calling gay sex a criminal offence. The court also placed the onus on parliament, saying only it can scrap or change laws.

In 2017, a landmark verdict of the Supreme Court that named right to privacy a fundamental right. This brought some hope to the LGBT community as the top court said that the right to privacy is valid even in the context of Section 377.

Sexual orientation is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine,” the court said in its judgment.

Several Congress leaders like Rahul Gandhi, P Chidambaram, and Shashi Tharoor, Trinamool Congress leader Derek O’ Brien, CPI (M) leader Brinda Karat and the Aam Aadmi Party, among others support the LGBT community.

Watch what equal rights activists has to say about it:

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