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SC Judgement on Section 377 (2018)

SC Judgement on Section 377 (2018)

What is Section 377?

  • Section 377 refers to ‘unnatural offences’ and 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 pay a fine.

Timeline Of The Section 377 Case: | SC Judgement on Section 377 (2018)

  • 2001: Naz Foundation files petition
    • Naz Foundation, an NGO that work on HIV/AIDS and sexual health issues, files a petition in the Delhi high court against Section 377.
  • 2009: Delhi High Court on Section 377
    • In 2009, the Delhi High Court 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.
  • 2013: Supreme Court Re-criminalises Gay Sex
    • That Delhi High Court judgement was overturned by the Supreme Court in December 2013. It said that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
  • 2016: Curative petition by Naz Foundation, activists heard
    • In February 2016, the three-member bench headed by then the Chief Justice of India TS Thakur said that all the curative plea of NGO Naz Foundation and some gay rights activists will be reviewed afresh by a five-member constitutional bench.
  • 2017: Supreme Court Upholds Right To Privacy
    • In August 2017, the Supreme Court held Right to Privacy as a fundamental right. Sexual orientation, the court said, is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”.
  • 2018: Supreme Court Hears Petitions on Section 377
    • In July, the Supreme Court reconsiders its 2013 decision and begins hearing petitions challenging Section 377. In one of the hearings, Chief Justice of India Dipak Misra indicated that the 150-year-old ban on gay sex may soon be gone. “We intend to rule, subject to arguments, that two consenting adults even if engaged in ‘unnatural sex’ will not be liable for prosecution for any offence,” Chief Justice Misra had said. The top court reserved its verdict after hearing the petitions.

Summary | SC Judgement on Section 377 (2018)

  • The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex.
  • The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination.
  • The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.

 

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