Supreme Court to review its 2013 verdict on Section 377 which criminalizes gay sex

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As the right to privacy being considered a fundamental right, the Supreme Court today decided to review it’s 2013 decision, which criminalizes gay sexual relations and said it will review Section 377 of Indian Penal Code that creates such relations a crime. The apex court also issued a notice today to the Centre seeking its response to a writ petition filed by five members of the lesbian, bisexual, gay, transgender and queer (LGBTQ) community, who said they live in anxiety of police because of their natural sexual orientation and preferences.

The Supreme Court also mentioned to a Constitutional bench the petition seeking to decriminalize consensual sex between LGBTQ adults. The top court set away from the Delhi High Court’s 2009 verdict decriminalizing homosexuality in December 2013. Commenting on the SC’s December 2013 judgment, a three-judge bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said it upholds the validity of Section 377, which clears sexual intercourse between consenting adults of the same gender is a crime that considers hurting the sexual preferences of individuals. The three-judge bench took their knowledge views expressed in another judgment in August, which gave the right to privacy the status of a fundamental right. It was also on the side of respecting the freedom of individuals to their sexual orientation.

The activist Gautam Bhan said SC’s reading of the right to privacy as an aspect of respect and equality, especially in the case of LGBTQ rights, was welcome. “We could have gone to court on privacy grounds. But we didn’t because that is not acceptance. It is just tolerance that favours the elites who can afford to conduct their lives behind closed doors. The judgment is much more than that. It has spoken of privacy with dignity and equality. It reaffirms the Delhi High Court judgment in speaking of sexuality within the framework of constitutionality,” Bhan said.

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