Section 377 of the Indian has been partially struck down Thursday by a five-judge bench of the Supreme Court, with the apex court legalising same sex relations between consenting adults. The bench headed by Chief Justice Dipak Misra gave four separate, but concurring judgments, that decriminalised sex between two consenting adults irrespective of their gender.
Here is a timeline of the case
1861: Introduction of Section 377
Section 377 was introduced by British India, modelled on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was brought into effect in 1860. It defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalising anal penetration, bestiality and homosexuality, in a broader sense.
2001: Naz Foundation files petition against Section 377 in Delhi High Court
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In 2001, non-governmental organisation Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court. They filed a lawsuit seeking the legalisation of homosexual relations between consenting adults.
2003: Delhi HC dismisses Naz Foundation plea
The Delhi High Court dismissed the Naz Foundation petition, saying the body had no standing in the matter. The Naz Foundation appealed against the dismissal in the Supreme Court in 2006. The Supreme Court instructed the Delhi High Court to reconsider the case.
2009: Delhi HC decriminalises homosexuality
In a landmark decision, the Delhi High Court decriminalised homosexuality among consenting adults, holding it violates the right to equality, right against discrimination and protection of life under the Indian Constitution.
2012: Supreme Court overturns the HC order
After the high court’s judgment, various appeals were made to the Supreme Court, challenging the High Court’s authority to change a law. In December 2012, the Supreme Court overturned the high court’s decision, after finding it “legally unsustainable.”
A two-judge bench, comprising Justice G S Singhvi and Justice S J Mukhopadhaya observed that the high court had overlooked the fact that a “minuscule fraction of the country’s population constitutes LGBT,” and that in over 150 years less than 200 people were prosecuted for committing an offence under the section.
The Supreme Court then recommended that the Parliament address the matter because only they had the power to amend the existing laws.
2015: Shashi Tharoor’s Private Member Bill
After the Narendra Modi-led government was sworn-in in 2014, it said it would take a decision regarding Section 377 only after the Supreme Court judgment. In a written reply to Lok Sabha, Minister of State (Home) Kiren Rijiju had said, “The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgment by the Supreme Court.”
A year later, when Shashi Tharoor introduced a private member’s Bill to decriminalise homosexuality, the Lok Sabha voted against it.
2016: Five petitioners move SC against Section 377
Five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and business executive Ayesha Kapur.
The petition claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”
2018: SC begins hearing on Section 377
A five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising of Justices R F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra, begins hearing petitions challenging Section 377.
September 6, 2018: SC decriminalises gay sex
The bench delivers four separate, but concurring, judgments that decriminalised sex between two consenting adults irrespective of their gender. The apex court has also overruled its previous verdict in the 2016 case, which had reversed the Delhi High Court ruling decriminalising gay sex.
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