A five-judge constitution bench will hear a bunch of petitions that demand the scrapping of Section 377.
A British-era law that makes homosexuality a crime will be up for re-examination today 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. On Monday, the court refused to adjourn the hearing despite Centre's plea for more time to file its response on the issue. The top court was asked to re-examine the issue after it set aside a Delhi High Court verdict of 2009 that held Section 377 as "unconstitutional".
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In January, a bench of the Supreme Court, headed by Chief Justice of India Dipak Misra, referred the matter to a larger bench, saying social morality changes from age to age and "what is natural to one may not be natural to the other".
Individuals who exercise their choice should never "remain in a state of fear", the court said. "Choice can't be allowed to cross the boundaries of law" but pointed out that the law can't "trample or curtail" the constitutional right to life and liberty, added the bench.
The five-judge bench that will re-examine the issue will be headed by Chief Justice Dipak Misra and comprise Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
Section 377 of the Indian Penal Code says whoever voluntarily has carnal inter course against the order of nature shall be punished with imprisonment for life, or upto 10 years, and a fine. While prosecutions under the Section has been rare, activists maintain the police used the law to harass and intimidate members of the LGBT community.
In July 2009, the Delhi High Court had decriminalised gay sex between consenting adults, bringing it out of the ambit of Section 377.
But in December 2013, the Supreme Court reversed the High Court order and said gay sex is a criminal offence. The court also placed the onus on parliament, saying only it can scrap or change laws.
Last year, a landmark verdict of the Supreme Court that named right to privacy as a fundamental right, brought cheer to the LGBT community. The top court said right to privacy is valid even in the context of Section 377.
Sexual orientation, the court said in its judgment, is an "essential component of identity" and the rights of lesbian, gay, bisexual and transgender population are "real rights founded on sound constitutional doctrine".
While the government has supported Section 377 in court, union minister Arun Jaitley said, "When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed."
Congress leaders Rahul Gandhi, P Chidambaram, Shashi Tharoor, Trinamool Congress leader Derek O' Brien, CPI (M) leader Brinda Karat and the Aam Aadmi Party, among others, have expressed support for the LGBT community.
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