Updated: January 8, 2018 10:37:07 pm
The Supreme Court on Monday agreed to reconsider its 2013 verdict criminalising homosexuality and referred to a larger bench the plea challenging the penal provision, observing the societal morality “changes from age to age.”
Giving a ray of hope to the gay, lesbian and transgendered communities which are pushing for scrapping Section 377 of the IPC that criminalises homosexuality, the apex court decision moved a step towards a final judicial call on the controversial provision that has been described as “archaic.”
A three-judge bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, while “taking all aspects in a cumulative manner, we are of the view that the decision in Suresh Kumar Koushal ‘s case requires reconsideration”, referred the matter to a larger bench to be constituted by the CJI and also sought the assistance of Union of India in the matter. The bench noted that “a section of people or individuals who exercise their choice should never remain in a state of fear” and “societal morality also changes from age to age”.
Section 377 criminalises sexual acts “against the order of nature” and has undergone many twists and turns ever since the Delhi High Court decriminalised it in 2009. Later, in 2013, the Supreme Court overturned the decision. But, with the apex court deciding to revisit its decision on Monday, there is a renewed hope among the members of the LGBT community.
In August this year, the apex court, in its landmark judgment on the privacy issue, said that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.
Section 377 of IPC – which came into force in 1862 – defines unnatural offences. It says, “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 10 years, and shall also be liable to fine.” Moreover, the law also mentions that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section”.
Welcoming the decision, All India Mahila Congress President Sushmita Dev said, “Congress welcomes Supreme Court’s decision. Everybody has equal right to live life the way they want: All India Mahila Congress President Sushmita Dev on SC bench to reconsider constitutional validity of section 377.”
Meanwhile, BJP leader Subramanian Swamy said that as long as the LGBT community keeps “it” private there will be no problem but they flaunt “it”, it should be punished and therefore the need for section 377. He said, “As long as they don’t celebrate it, don’t flaunt it, don’t create gay bars to select partners it’s not a problem. In their privacy what they do, nobody can invade but if you flaunt it, it has to be punished & therefore there has to be Section 377 of the IPC.”
After Prime Minister Narendra Modi-led government was sworn in in 2014, it said it would take a decision regarding Section 377 only after the SC judgment. In a written reply to Lok Sabha, Minister of State (Home) Kiren Rijiju had said, “No. The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court.”
A year later in 2015, the lower house, where the BJP is in majority, voted against the introduction of a private member’s Bill to decriminalised homosexuality. The Bill had been proposed by Congress leader Shashi Tharoor.
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