A five-judge constitution bench is hearing petitions that demand the scrapping of Section 377.
Highlights
- A five-judge Constitution Bench led by CJI Dipak Misra hearing the case
- In July 2009, the Delhi High Court decriminalised gay sex
- In 2013, the top court cancelled that verdict, upholding Section 377
A 150-year-old law that prescribes a life term in jail for gay sex is under spotlight as a five-judge Constitution Bench started hearing a bunch of petitions that call for its scrapping. The bench, however, said it would only examine the "correctness" of its verdict of 2013, which cancelled a Delhi High Court judgment that said the law criminalizing gay sex was "unconstitutional". As petitions for a relook into the 2013 order kept piling up, the top court decided to take a fresh look at the matter in January, citing changing "social morality".
Here are the top 10 updates in this big story:
Appearing for one of the petitioners, the government's former law officer Mukul Rohatgi contended that the LGBT community is a sexual minority and want a "declaration to protect our rights". "Our case is that sexual orientation is not a matter of choice and has something to do with genes," he said.
The law on gay sex was valid 50 years ago, but now it is invalid because the society has changed, Mr Rohatgi argued.
"We are only examining the correctness of the Supreme Court verdict in 2013 quashing the Delhi High Court verdict on Section 377," said Chief Justice of India Dipak Misra, who is leading the five-judge Constitution Bench. The other judges in the bench are Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
Appearing for another petitioner, senior advocate Arvind Datar said the gay sex law pre-dates the Constitution and therefore does not represent the will of the people. To this, Chief Justice Dipak Misra replied, "If we go by your view then entire pre-independence laws are not valid".
The Centre is yet to reveal its stand on ending criminalization of gay sex. While it has so far backed the law, this time, it is yet to file its response, which was sought by the top court. Yesterday, the court turned down the government's appeal for more time and gave a green signal for the hearing. Mr Rohatgi said, "The Centre didn't file its affidavit and didn't file appeal. So the Centre's stand is clear as daylight".
Under Section 377 of the Indian Penal Code, sex "against the order of nature" draws a jail term and a fine. While prosecutions under has been rare, activists say the police use the law to harass members of the LGBT community.
In July 2009, the Delhi High Court decriminalised gay sex between consenting adults, bringing it out of the ambit of Section 377.
But this judgment was cancelled by the top court in 2013, which upheld the existing law. The court placed the onus on parliament, saying only it can scrap or change laws.
The Supreme Court's landmark judgment on Right To Privacy last year brought hope for the LGBT community. The court said the rights of lesbian, gay, bisexual and transgender population are "real rights founded on sound constitutional doctrine".
In January, a bench of the Supreme Court, headed by Chief Justice of India Dipak Misra, referred the petitions on gay sex to a larger bench, saying social morality changes from age to age and individuals who exercise their choice should never "remain in a state of fear".
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