Supreme Court seeks centre’s response over plea on Section 377

 

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The Supreme Court on Monday sought the centre’s views on a challenge to a Victorian era law criminalizing sexual intercourse by consenting adults of the same sex.

Highlights

  • The matter was brought before a bench headed by Chief Justice Dipak Misra, who issued notice to the centre and sought its reply within a week.
  • The court was hearing a plea by Keshav Suri, executive director at Lalit Suri Hospitality Group, who sought a declaration that the right to choice of sexual orientation was embedded in Article 21 (right to life and personal liberty) and any discrimination against a person on the basis of exercise of this choice was in violation of the constitutionally guaranteed fundamental rights.
  • He also sought scrapping of Section 377 of the Indian Penal Code, 1860, that criminalizes consensual intercourse between same-sex adults.
  • In his petition, Suri argued he was facing discrimination on account of his sexual orientation and for being passionate about the cause of inclusion of members of the LGBTQ community in economic and social spheres.
  • A fresh challenge to the apex court’s 2013 ruling criminalizing consensual sex between same sex adults is pending before the court and is likely to be heard by a Constitution bench.
  • It was brought to the apex court by a group of five prominent representatives of the LGBT community—Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur.
  • On 24 August, 2017, a nine-judge bench of the apex court held privacy to be a fundamental right, sparking hopes this could lead to the decriminalization of homosexuality.
  • In December 2013, a division bench of the Supreme Court overturned a 2009 high court verdict that had set aside the 1860 law and decriminalized consensual sex among adult homosexual men.
  • The apex court is also considering a curative petition filed by Naz Foundation Trust, the non-governmental organization that had originally filed a lawsuit in the Delhi high court in 2001. In 2009, the high court had ruled that Section 377 of the IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, was unconstitutional.
  • The curative petition filed before the top court argues that the court has incorrectly held that a “minuscule fraction of population cannot claim fundamental rights”. The petition also alleged an issue bias by the court against the LGBT community through its references, such as “the so-called rights of LGBT persons” in its 2013 judgement.

Here’s all you need to know about Section 377

  • Section 377 of the Indian Penal Code 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.” Simply put, Section 377 is an archaic law that was introduced during the British era in 1860s and makes gay sex a crime for which the punishment can be a life term.
  • This also has implications for heterosexuals, as consensual sexual acts of adults – oral and anal sex in private – are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.
  • In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution. Religious groups, however, had appealed against the decision in the Supreme Court.
  • In 2013, the Supreme Court cancelled the Delhi high court order and re-criminalised homosexuality. It said that it was the job of the parliament to decide on scrapping laws.
  • The decision that gay sex is a criminal offense was seen as a major setback for human rights and was also widely criticized. While prosecutions under section 377 have been rare, activists have said that the police used the law to harass and intimidate members of the LGBT community.
  • After the 2013 Supreme Court’s decision, prominent BJP leader Rajnath Singh had said, “We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.” On the contrary, senior BJP leader Arun Jaitley had 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.

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