SC to give verdict on Section 377, which criminalises gay sex, today

New Delhi: The entire nation awaits the Supreme Court’s verdict on Thursday, on whether Section 377 of IPC would be done away with. This section punishes “carnal intercourse against the order of nature with man, woman or animal” with life imprisonment.

A five judge bench, comprising Chief Justice of India (CJI), Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra had concluded hearing in this controversial issue and reserved its verdict 49 days ago.

This judgment is the first in the series of the ten important judgments that the CJI will be a part of before his retirement on October 2.

The Supreme Court in 2016 had admitted a petition filed by five members of LGBT community – Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra, challenging the constitutionality of the colonial-era law section 377 of the Indian Penal Code. Subsequently, several more petitions were filed by more members of the LGBT community.

Alhough formal prosecution is rare, activists allege the law forces LGBT people to live in fear and face blackmail, intimidation and pervasive discrimination, 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 of the Indian Penal Code that criminalised sex between consenting gay adults. However, in December 2013, the Supreme Court reversed the 2009 verdict and re-criminalised gay sex.

The issue of section 377 again came under the spotlight in 2017 with the judgment in the Right to Privacy mater, where judgment said just because “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” is not a sustainable basis to deny the right to privacy.

The court touched on the rights of LGBT with regard to privacy and said, “Sexual orientation is an essential attribute of privacy. And we disagree with the manner in which Koushal (LGBT rights judgment) has dealt with the privacy – dignity-based claims of LGBT persons in this aspect. “

Narendra Modi-led government has chosen not to take a stand in the matter, and accept the court’s decision, but also asked the court to clarify that the right to choose a partner should not extend to “perversions like incest.”

The constitution bench had rejected the idea to let Parliament take a decision on repealing Section 377 during hearing, observing that a government in majority, will not touch an offending law and therefore Constitution empowers the court to strike it down if it is found to be unconstitutional.